CRIMINAL LAW

SIXTH EDITION
CRIMINAL LAW
SIXTH EDITION

by

CR SNYMAN
BA LLD (UOFS)
Research Fellow and former Professor of Criminal and Procedural Law,
University of South Africa
Advocate of the High Court of South Africa
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© CR Snyman 2014
ISBN Softcover 978 0 409 05308 1
First edition 1984 Reprinted 1996, 1997, 1998, 2000, 2001
Reprinted 1987, 1990 Fourth edition 2002
Second edition 1991 Reprinted 2003, 2005, 2006, 2007
Reprinted 1992, 1993 Fifth edition 2008
Third edition 1995

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 PREFACE

To prepare a new edition of a book such as this one, of which five previous
editions have already appeared, would seem to the uninitiated to be a task
which ought not to be particularly difficult. One tends to assume that the author
merely needs to insert the latest new case law and legislation dealing with
criminal law into the existing text. In reality the preparation of a new edition is
not that simple. If the author were merely to “add” references or discussions of
new case law or new legislation, the book would, like a snowball, simply
become bigger and bigger with each new edition, until it becomes unwieldy.
In the preparation of this edition of the work I tried as far as possible to keep
the total length of the work roughly the same as that of previous editions. In
principle this meant that every insertion of new material had to be counter-
balanced by the deletion of some existing material. It is here that the problem
arises. An author is loath to eliminate existing statements or discussions to
which he has devoted much time and research in the past. Sometimes an author
feels that the challenge in preparing a new edition is not so much to decide
what to add, but rather what to leave out. For every new judgment referred to in
a footnote, an existing one should, at least theoretically, be deleted. However, it
is by no means easy to decide which references to delete and which to retain.
Sometimes I have deleted a single sentence in the text, sometimes a whole foot-
note, and sometimes a paragraph.
In the discussion of the crisis in the criminal justice system (I D 4) I abide by
my view that the abolition of the death sentence for murder in Makwanyana
1995 2 SACR 1 (CC) was wrong, pointing out that never before in the peace-
time history of this country has the value of human life been lower than since
the introduction of the “right to life”, the concept of “the sanctity of human
life” and, accompanying it, the abolition of the death sentence. I adhere to my
view that although the Constitutional Court in that case intended to protect and
extend the right to life and the sanctity of human life, what it in fact achieved
was exactly the opposite.
Some of the most important changes to the text of this edition, compared to
that of the previous edition, are the following:
In the discussion of the principle of legality (I F 7) I discuss the important new
decision of the Supreme Court of Appeal in Director of Public Prosecutions,
v
vi CRIMINAL LAW

Western Cape v Prins 2012 2 SACR 183 (SCA), which deals with the question
of whether a court can accept that an Act has created a crime if it creates a
criminal norm only, but remains silent on the criminal sanction – in other
words, where the legislature creates a provision in an Act stating that certain
conduct constitutes a crime but fails to set out the punishment for the crime.

Sections 7 and 11 of the new Child Justice Act 75 of 2008 set out new age
limits for determining the criminal capacity of young children. These new
provisions have necessitated a rewriting of large parts of the discussion of the
effect of immature age on liability (V B (iv)) and has also necessitated changes
in the definitions of the crimes of common-law abduction (XII B 1) and kidnap-
ping (XVII A 1).

New judgments on the topic of private defence (IV B) which have been
incorporated into the discussion in this edition, include Steyn 2010 1 SACR 411
(SCA) and Snyders v Louw 2009 2 SACR 463 (C). The judgment of the
Supreme Court of Appeal in Maimela and another v Makhado Municipality
and another 2011 2 SACR 329 (SCA) has been incorporated in the discussion
of the defence of necessity (IV C).

The whole discussion of the effect of provocation on liability (V F) has been

rewritten. This defence has undergone many changes through the years. The
last reported judgment dealing specifically with the effect of provocation dates
back to more than forty years ago (Mokonto 1971 2 SA 319 (A)), which leaves
the commentator with little or no authority on which to rely when describing
this topic.

The much-discussed new judgment of the Supreme Court of Appeal in

Humphreys 2013 2 SACR 1 (SCA), dealing with the conative element of dolus
eventualis, has been discussed and criticised in the discussion of this topic
(V C 8).

The judgment of the Supreme Court of Appeal in Hoho 2009 1 SACR 276
(SCA) has necessitated a rewriting of the largest part of the discussion of the
crime of criminal defamation (XVI B).
Further important new judgments which are discussed in this edition are
Ndebele 2012 1 SACR 245 (GSJ) which deals with theft of electricity (XVIII A
8) and Mshumpa 2008 1 SACR 126 (E), which deals with a number of topics,
including the principle of legality, the definition of murder, incitement and
conspiracy.

In the previous editions of this work it was argued that the act required for
theft should simply be described as an appropriation of the property (instead of
a contrectatio fraudulosa or a “taking and carrying away”) and the intention
required an intention to appropriate. It seems as if the courts now consistently
follow this view, especially if one reads the latest reported judgments on this
crime, such as Nkosi 2012 1 SACR 87 (GNP) and Mekula 2012 2 SACR 521
(ECG). The discussion of theft (XVIII A) has accordingly been abbreviated as
far as the discussion of the requirements of an act and of the intention in the
first number of pages of the discussion of this crime is concerned.
 PREFACE vii

I have referred to reported judgments up to and including the December 2013

issue of the South African Criminal Law Reports, as well as to other legal
literature available to me at the end of 2013.

CR SNYMAN
Pretoria
March 2014
 CONTENTS

PAGE

PREFACE ........................................................................................................... v

PART ONE: GENERAL PRINCIPLES

I INTRODUCTION
A Introductory topics ...................................................................... 3
B The sources of criminal law........................................................ 5
C Theories of punishment .............................................................. 10
D The crisis in the criminal justice system..................................... 20
E Criminal liability: A summary.................................................... 29
F The principle of legality ............................................................. 35

II CONDUCT
A Conduct (act or omission)........................................................... 51
B Omissions ................................................................................... 58
C Possession ................................................................................... 62

III THE DEFINITIONAL ELEMENTS

A Compliance with the definitional elements ............................... 71
B Causation .................................................................................... 79

IV UNLAWFULNESS (JUSTIFICATION)
A The concept of unlawfulness ...................................................... 95
B Private defence............................................................................ 102
C Necessity ..................................................................................... 114
D Consent ....................................................................................... 122
E Presumed consent ....................................................................... 127
F Official capacity.......................................................................... 128
G Use of force and homicide during arrest .................................... 129
H Obedience to orders .................................................................... 134

ix
x CRIMINAL LAW

PAGE
I Disciplinary chastisement ........................................................... 137
J Excursus: Trifling nature of act as a defence ............................. 139
K Excursus: Entrapment is not a ground of justification ............... 140

V CULPABILITY
A Requirement of culpability in general ........................................ 145
B Criminal capacity ........................................................................ 155
(i) The concept of criminal capacity ....................................... 155
(ii) Non-pathological criminal incapacity................................ 158
(iii) Mental illness ..................................................................... 164
(iv) Immature age ..................................................................... 173
C Intention ...................................................................................... 176
D Negligence .................................................................................. 204
E Effect of intoxication .................................................................. 216
F Effect of provocation .................................................................. 230
G Necessity as a ground excluding culpability .............................. 235
H Strict and vicarious liability ........................................................ 236
(i) Strict liability ..................................................................... 236
(ii) Vicarious liability .............................................................. 242

VI CRIMINAL LIABILITY OF CORPORATE BODIES ..................... 245

VII PARTICIPATION AND ACCESSORIES AFTER THE FACT

A General ........................................................................................ 249
B Perpetrators ................................................................................. 252
C Accomplices ............................................................................... 265
D Accessories after the fact ............................................................ 271

VIII ATTEMPT, CONSPIRACY AND INCITEMENT

A General ........................................................................................ 275
B Attempt ....................................................................................... 276
C Conspiracy .................................................................................. 286
D Incitement ................................................................................... 289

PART TWO: SPECIFIC CRIMES

CRIMES AGAINST THE STATE AND THE

ADMINISTRATION OF JUSTICE

IX CRIMES AGAINST THE STATE

A High treason ................................................................................ 299
B Sedition ....................................................................................... 308
C Public violence............................................................................ 311
 CONTENTS xi

PAGE
X CRIMES AGAINST THE ADMINISTRATION OF JUSTICE
A Contempt of court ....................................................................... 315
B Defeating or obstructing the course of justice ............................ 327
C Perjury......................................................................................... 332
D Subornation of perjury ................................................................ 335
E Making conflicting statements under different oaths
(contravention of section 319(3) of Act 56 of 1955).................. 336
F Making false statements in an affidavit
(contravention of section 9 of Act 16 of 1963) .......................... 338
G Escaping from custody ............................................................... 338

CRIMES AGAINST THE COMMUNITY

XI SEXUAL CRIMES
A General ........................................................................................ 341
B Rape ............................................................................................ 343
C Compelled rape ........................................................................... 358
D Sexual assault ............................................................................ 360
E Compelled sexual assault ........................................................... 368
F Compelled self-sexual assault .................................................... 369
G Compelling another to watch sexual acts ................................... 371
H Exposing genital organs, anus or breasts (“flashing”) ............... 372
I Displaying child pornography .................................................... 373
J Engaging sexual services for reward (prostitution) .................... 373
K Incest ........................................................................................... 378
L Bestiality ..................................................................................... 381
M Sexual act with a corpse ............................................................. 383
N Sexual offences against children ................................................ 383
O Sexual offences against mentally disabled persons .................... 390

XII CRIMES AGAINST THE FAMILY

A Bigamy ........................................................................................ 393
B Common-law abduction ............................................................. 395

XIII CRIMES AGAINST PUBLIC WELFARE

A Corruption .................................................................................. 401
B Extortion ..................................................................................... 417
C Drug offences.............................................................................. 420
D Unlawful possession of firearms or ammunition........................ 426
E Concealment of births ................................................................. 432
F Public indecency ......................................................................... 433
G Violating a grave ........................................................................ 435
H Violating a corpse ....................................................................... 436
xii CRIMINAL LAW

PAGE
CRIMES AGAINST A PERSON

XIV CRIMES AGAINST LIFE

A Murder ........................................................................................ 437
B Culpable homicide ...................................................................... 442
C Administering poison or another noxious substance .................. 443
D Exposing an infant ...................................................................... 444

XV CRIMES AGAINST BODILY INTEGRITY

A Assault ........................................................................................ 447
B Intimidation................................................................................. 455
C Pointing a firearm ....................................................................... 458

XVI CRIMES AGAINST DIGNITY AND REPUTATION

A Crimen iniuria ............................................................................ 461
B Criminal defamation ................................................................... 467

XVII CRIMES AGAINST FREEDOM OF MOVEMENT

A Kidnapping ................................................................................. 471

CRIMES AGAINST PROPERTY

XVIII CRIMES RELATING TO APPROPRIATION OF PROPERTY

A Theft ............................................................................................ 475
B Removal of property for use ....................................................... 502
C Robbery....................................................................................... 508
D Receiving stolen property ........................................................... 512
E Inability to give account of possession of goods suspected of
being stolen (contravention of section 36 of Act 62 of 1955) .... 515
F Receiving stolen property without reasonable cause
(contravention of section 37 of Act 62 of 1955) ........................ 519

XIX FRAUD AND RELATED CRIMES

A Fraud ........................................................................................... 523
B Forgery and uttering ................................................................... 532
C Theft by false pretences .............................................................. 535

XX CRIMES RELATING TO DAMAGE TO PROPERTY

A Malicious injury to property ....................................................... 539
B Arson........................................................................................... 542
C Housebreaking with intent to commit a crime ........................... 543
D Possession of housebreaking implements .................................. 550
E Trespass ...................................................................................... 551

SCHEDULES............................................................................................... 555
BIBLIOGRAPHY ........................................................................................ 559
MOST IMPORTANT LEGISLATION DISCUSSED ................................ 567
TABLE OF CASES ..................................................................................... 569
INDEX ......................................................................................................... 603
 PART ONE

GENERAL PRINCIPLES
 CHAPTER

INTRODUCTION

A INTRODUCTORY TOPICS
1 Criminal law and the legal system This book deals with South African
criminal law. Law is traditionally subdivided into two main categories, namely
public law and private law. In principle, public law deals with the relationship
between the state as an authoritative power and the subjects of the state, with
the relationship between the different branches of state authority (such as the
different ministries of the state), and with the relationship between different
states. Private law, on the other hand, may be said to regulate relationships
between individuals as subjects of the legal order. The state as an authoritative
power is always a party in public law. Just as private law may be subdivided
into, for example, the law of obligations, the law of succession and the law of
things, public law may be subdivided into, for example, constitutional law,
administrative law and criminal law.
However, law may also be subdivided in another way, namely by distinguish-
ing between substantive law and formal law. Substantive (or material) law
comprises substantive legal rules setting out the rights and duties of subjects or
of the state, while formal law comprises rules setting out the procedure or
methods by which the rules of substantive law are enforced. In terms of this
subdivision, both public and private law form part of substantive law, whilst
formal or procedural law may be further subdivided into the law relating to
criminal procedure, that relating to civil procedure and the law of evidence.
Criminal law forms part of substantive law. Criminal procedure is, from the
point of view of criminal law, an important auxiliary branch of the law. It lays
down the procedure by which alleged criminals are brought before court and
tried for their alleged crimes. Some other important branches of law and related
spheres of study which may influence or which may be influenced by criminal
law are the law of delict, the law of evidence, criminology and penology. The
latter two are, in any event in South Africa, not regarded as pure legal sciences.
2 Crimes and delicts Whilst there are many similarities between crimes and
delicts, there are nevertheless also fundamental differences between the two. It
is precisely when a crime is compared with a delict that a crime’s fundamental
characteristics come to the fore. Both crimes and delicts may be described as
unlawful, blameworthy acts or omissions. Broadly speaking, a delict is an
3
4 CRIMINAL LAW

unlawful, blameworthy act or omission resulting in damage to another and in a

right on the part of the injured party to compensation. The injured party may, if
he so wishes, institute an action for damages against the offender. A crime, on
the other hand, is unlawful, blameworthy conduct punishable by the state.
One and the same act may constitute both a crime and a delict. If X assaults
Y, Y can claim damages from X on the grounds of delict. He can also lodge a
complaint with the police against X on the grounds of assault, which may lead
to X’s conviction and punishment for the crime of assault. This, however, does
not mean that all delicts also constitute crimes. Two examples of conduct
constituting a delict but not a crime are the negligent causing of damage and
seduction. Again, most crimes, for example high treason, perjury, bigamy and
the unlawful possession of drugs, are not delicts.
In principle, the following distinction may be made: a crime is almost invari-
ably injurious to the public interest, by which is meant, the interests of the state
or the community, whereas a delict is ordinarily injurious only to private or
individual interests.1 Whereas criminal law forms part of public law, the law of
delict forms part of private law, and in particular of that part of private law
which is known as the law of obligations. It is not for the person who has
suffered harm or injury as a result of the commission of a crime to decide
whether the offender should be criminally charged or not. The police may
decide to proceed with a criminal charge even if the complainant begs them not
to do so. In the case of a delict, on the other hand, it is up to the person who has
suffered damage to decide whether to sue the wrongdoer for damages or not.
Perhaps the most important difference between a crime and a delict lies in the
nature of the sanctions which follow on their commission. Where a delict has
been committed the guilty party is ordered to pay compensation to the com-
plainant, the purpose of which is to put the complainant in the same position he
would have been in had the delict not been committed. Where someone is
convicted of a crime, on the other hand, a punishment is imposed on him, with
a view to retribution, the prevention of crime, deterrence or the rehabilitation of
the offender. Generally speaking, a convicted person will suffer some form of
pain or misfortune such as imprisonment or a fine. Furthermore, it is as a rule
the state which prosecutes in a criminal case. Although provision is made in the
Criminal Procedure Act 2 for private prosecutions, these are extremely rare in
South Africa; the right to prosecute privately is really nothing more than a
“safety valve” left open to the aggrieved individual where the state refuses to
prosecute.
If a person is charged in a court with having committed a crime, the trial is
governed by the rules of criminal procedure. But if someone claims damages on
the ground of delict, the trial is governed by the rules of civil procedure.
To summarise, the distinguishing features of a crime can be described as follows:
it is conduct which is legally forbidden, which may, in principle, be prosecuted only
by the state, and which always results in the imposition of punishment.
________________________

1 The last part of this statement is subject to the following exception: it is possible for the
state to be a plaintiff or a defendant in a delictual claim in private law matters where it
figures not as the bearer of authority but on an equal footing with the individual.
2 Act 51 of 1977. See ss 7–17.
 INTRODUCTION 5

The most important points of difference between a crime and a delict can be
summarised as follows:

Crimes Delicts
1 Directed against public interests Directed against private interests
2 Form part of public law Form part of private law
3 State prosecutes Private party institutes action
4 Result in the imposition of Result in the guilty party being ordered
punishment by the state to pay damages to the injured party
5 State prosecutes perpetrator Injured party can choose whether he
irrespective of the desires of wishes to claim damages or not
private individual
6 Trial governed by rules of Trial governed by rules of civil
criminal procedure procedure
3 No difference between “crimes” and “offences” In South Africa crimin-
ally punishable conduct is sometimes referred to as a “crime” and sometimes as
an “offence”. However, there is no technical difference between a “crime” and
an “offence”. In the discussion which follows, the term “crime” will be used
throughout in the interests of consistency.

B THE SOURCES OF CRIMINAL LAW

1 Three main sources of our criminal law The three most important sources
of our criminal law are first, legislation, secondly, the common law, and thirdly,
case law. However, the second and third sources overlap, since the contents of
the common law has to a very large extent been set out in our reported (ie,
published) case law.
In addition to these sources one can identify certain further sources of influence
which have left their mark on our criminal law, and which will be described
briefly hereafter. These influences are English law, German criminal-law theory,
and the Bill of Rights in the Constitution.
2 Legislation In considering the sources of our criminal law, legislation must
occupy the first place, since an Act creating a crime or containing a provision
relating to the determination of criminal liability must obviously be applied and
receive priority over the provisions of common law. Unlike our criminal pro-
cedure, our substantive criminal law has not yet been codified, and it does not
seem that it will be within the foreseeable future.3 Until now the South African
legislature has been silent on the general principles of criminal law, with the
________________________

3 South Africa is one of the very few countries in the world in which the substantive crim-
inal law has not yet been set out in a single, comprehensive and coherent Act or Code. In
1995 Snyman drew up a Draft Criminal Code for South Africa. For a discussion of the
implications of the absence of an official criminal code in South Africa, the advantages of
codification, as well as comparisons to other countries or jurisdictions, see the Introduction
to this publication.
6 CRIMINAL LAW

important exception of the rules governing the defence of mental illness, which
were set out in sections 77 to 79 of the Criminal Procedure Act 51 of 1977. The
best-known specific crimes, such as murder, assault and theft, are nowhere
statutorily defined, and their requirements must therefore be sought in our com-
mon law. Nevertheless, the South African legislature has created a vast number
of statutory crimes. In a book of this scope it is impossible to pay attention to
all of them. Only some of the more important ones will be discussed.
There is one Act which towers above all other Acts in importance. This is the
Constitution of the Republic of South Africa 108 of 1996. Chapter 2 of the
Constitution contains a Bill of Rights. All rules of law, irrespective of whether
they are contained in legislation or in common law, must be compatible with
this Bill of Rights. If a rule is incompatible with the Bill of Rights, it may be
declared null and void. This applies, of course, also to the rules governing
substantive criminal law.
3 Case law The role of the courts in describing and developing our criminal
law is vital. According to the principle of judicial precedent which is followed
in South Africa, as it is in England (but not in continental Europe), a lower
court is in principle bound to follow the construction placed upon a point of law
by a higher court, and a division of the High Court is in principle also bound by
an earlier interpretation of a point of law by the same division. Today a practi-
tioner who wants to find out the common law (ie, those legal rules not con-
tained in Acts of parliament or enactments of other subordinate legislatures) on
a particular point seldom needs to read the old authorities such a Matthaeus or
Voet. Almost all the most important rules and principles of common law have,
over the years, been adopted and expounded in our case law.
4 Common law The term “common law” refers to those rules of law not
contained in an Act of parliament or of legislation enacted by some other
subordinate legislature, such as a provincial legislature, but which are neverthe-
less just as binding as any legislation. The common law of South Africa is
Roman-Dutch law. Roman-Dutch law is that system of law which originated
about 2 500 years ago in Rome, spread during and after the Middle Ages to
Western Europe and was received from the late thirteenth, up to the end of the
sixteenth century, in the Netherlands. Justinian was the emperor of the Eastern
Roman empire from 527 to 565 AD. He ordered the scattered texts of Roman
law to be assembled in one compilation. This came to be known as the Corpus
Iuris Civilis. It consisted of four parts, namely (a) the Institutiones, (b) the
Digesta or Pandectae, (c) the Codex and (d) the Novellae. Criminal law was
discussed chiefly in D 48 and 49 and C 9.
In later centuries Roman law as expounded in the Justinian compilation was
studied by jurists in Italy, who were known as the Glossators and Commenta-
tors. In the course of time the influence of this compilation spread across the
whole of Western Europe. Between roughly the thirteenth and the end of the
sixteenth centuries Roman law was received also in the Netherlands. The legal
system known as Roman-Dutch law resulted from the reception of Roman law
in the Netherlands and the fusion of Roman law and local customary law.
To ascertain the content of this legal system, recourse must be had to the works
of the great Dutch jurists who wrote treatises on this legal system. The most
noteworthy writers who wrote specifically on criminal law are the following:
 INTRODUCTION 7

Damhouder (1507–1581), who is known especially for his work Praxis Rerum
Criminalium; Matthaeus (1601–1654), who is known especially for his work
De Criminibus; Moorman (1696–1743), who wrote Verhandelinge over de Mis-
daaden en der selver straffen, and Van der Keessel (1735–1816), who wrote
Praelectiones ad Ius Criminale. Other well-known authors who wrote com-
prehensive treatises on the law in general, including criminal law, include Van
Leeuwen, Huber, Voet, Van der Linden and Hugo de Groot (Grotius). The
works of the Roman-Dutch writers were written in Latin or Dutch, but in the
course of time almost all the works have been translated into English.
The officials of the Dutch East India Company who administered the settle-
ment at the Cape after 1652 applied Roman-Dutch law. When for the first time
in 1795 and again finally in 1806 the Cape became an English colony, English
law did not replace Roman-Dutch law as the common law. Roman-Dutch law
spread to all the territories, colonies, republics and states which in 1910 came
together to form the Union of South Africa. Today it still forms the common
law of the Republic of South Africa. As already pointed out, the most important
rules and principles of our common law have found their way into our case law,
with the result that it is seldom necessary to go beyond the case law and consult
the old original treatises of the Roman-Dutch authors in order to find out the
contents or our law.
It is clear that the influence of the Roman-Dutch writers on criminal law in
South Africa is on the decline. The reasons for this are, first, that in the course
of the last century or two our courts have garnered what wisdom there is to be
found in the old sources and, secondly, that the technological age in which we
are living is characterised by needs and problems which in many respects differ
markedly from those of two or three centuries ago. The value of historical
research in law is not disputed; it may even be necessary as the starting point of
a writer’s investigation. It is nevertheless submitted that it would be wrong to
equate all legal investigation with investigation into the history of law, for this
would mean looking in one direction only, namely backwards. Furthermore, it
must be kept in mind that the historical method of research in criminal law is
impeded by the following factors: the old authorities were usually more con-
cerned with the punishment to be imposed for a crime than with the prerequi-
sites for liability; they often contradicted one another; they did not discuss the
general principles of criminal law on a systematic basis; and because their
knowledge of, among other things, psychology and human motivation in gener-
al was limited, their views concerning important topics such as the criminal
capacity of mentally ill persons or of youths are no longer of much value to us.
5 The influence of English law Apart from the three main sources of our
criminal law identified and discussed above, it is necessary briefly to consider
certain other factors which have influenced or still influence our criminal law.
Here one is not dealing with sources of our criminal law in the strict sense of
the word, but rather with factors which have influenced and are still influencing
our criminal law to such an extent that they cannot be ignored.
Although English law did not replace Roman-Dutch law when the Cape be-
came an English colony, it nevertheless in the course of the nineteenth century
exerted a strong influence on our law in general and criminal law in particular.
Conduct which was generally speaking punishable under Roman-Dutch law
8 CRIMINAL LAW

was often punished under new headings. Examples of these “new crimes” are
the qualified assaults (assaults committed with the intention of committing
another crime or of inflicting grievous bodily harm); housebreaking with the
intention of committing a crime; receiving stolen property knowing it to be
stolen; culpable homicide and fraud (which was a combination of the old crime
of stellionatus and the crimina falsi).
The infiltration of English law into the then existing Roman-Dutch criminal
law was in many respects inevitable and even to be welcomed. The common law
was deficient in certain respects. The expositions of the law by the various
Roman-Dutch writers were sometimes contradictory. Descriptions of the crimes
were often vague, and the writers more concerned with the punishments attendant
upon crimes than with their essential elements. To compound these problems,
very few legal practitioners were able to read and understand Latin properly.
Act 24 of 1886 of the Cape, also known as the “Native Territories’ Penal
Code”, embodied a criminal code for the area now known as the Transkei and
adjacent areas. The code is an almost exact transcription of a criminal code
drawn up by Sir James Stephen and introduced by him in a bill in the British
parliament but which was never adopted. In later years this code exerted a con-
siderable influence on South African criminal law as expounded by the courts,
for example, in defining the limits of the defence of provocation (section 141)
and in defining theft (section 179).
The influence of English law is especially noticeable in the appellation and
subdivision of the specific crimes, as well as in the particular requirements for
these crimes. In the field of the general principles of criminal law the influence
of English law is less noticeable. Concepts such as “unlawfulness”, “grounds of
justification”, “criminal capacity” and dolus eventualis, which have found their
way into our criminal law, are unknown in English law.
6 German criminal-law theory The study of criminal law consists of more
than the mere recording of a large number of isolated rules, examples, sections
of statutes, definitions of crimes and court decisions. It comprises a systematic
arrangement of this material, in other words a search for and formulation of
certain general principles to be applied in solving individual sets of facts. The
researcher may be aware of a large number of facts, examples, cases and rules,
but without the aid of general principles he will not know how to relate them to
one another. He will not be able to extricate himself from the seeming mass of
casuistry with which he is confronted. The term “criminal-law theory” denotes
a method of arranging the numerous subordinate rules, examples or cases
according to a system of general principles. Criminal-law theory is character-
ised by the systematic description of the requirements for criminal liability, that
is, the general requirements applicable to all crimes. Concepts which come to
mind in this respect are, for example, “act”, “unlawfulness”, “intention” and
“culpability” or “blameworthiness”.
Strictly speaking there is no legal system that can dispense with a set of gen-
eral rules. Accordingly, in every legal system criminal law may be described as
“scientific” or “systematic”. Nevertheless, it is clear that as far as this aspect of
the law is concerned, the approach to the study of criminal law of continental
Europe differs considerably from that of England. On the Continent, and more
particularly in Germany, the “scientific” approach is much more in evidence
 INTRODUCTION 9

than in England. In fact, the approach to the study of criminal law known as
“criminal-law theory” is almost invariably associated with the particular approach
or method followed in Germany (“Strafrechtswissenschaft”). This approach
utilises a highly sophisticated system of concepts in describing the general pre-
requisites for criminal liability. The emphasis here is on the formulation of con-
cepts which are universally valid, not confined to a particular place or time and
not dependent upon contingencies such as the accidents of history or the pecu-
liarities of individual nations or nationalities.4 This model’s method or reason-
ing is systematic and analytic. The tendency is to reason deductively, that is,
from the general to the particular.
This systematic continental model is also recommended for South Africa. Our
legal system has its origins in the Continent, but even leaving that consideration
aside it is the Continental model which is the most conducive to legal certainty
and to a consistent application of legal rules. Instead of having to apply, in an
ad hoc fashion, a collection of incidental and often unconnected individual
examples from the past by way of analogy to a new set of facts, the investigator
or judge has at his disposal a coherent system of principles to apply to novel –
and sometimes even unusual – facts.
7 The Bill of Rights The coming into operation of the Constitution of the
Republic of South Africa 108 of 1996 has had a far-reaching influence on the
whole of South African law. Chapter 2 of the Constitution contains a Bill of
Rights. The provisions of the Bill of Rights apply to the executive, the judiciary
and all organs of state.5 Parliament is no longer sovereign, and all rules of law,
irrespective of whether they are contained in statutes or common law, must be
compatible with the rights contained in the Bill of Rights.
The Bill of Rights prohibits discrimination on the grounds of, among other
things, race, gender, religion or language. It also creates a large number of
rights, such as, a right to dignity, life, freedom and security of the person, priv-
acy, religion, freedom of expression, political choice, property, education, lan-
guage, and a fair trial. It also creates a number of so-called “second generation
rights”, such as a right to a clean environment, access to adequate housing,
health care services, food, water and education, but it is noticeable that no pro-
vision is made for a right to an environment as free as possible of crime, or of a
right to adequate protection against crime.
Section 36 contains an important provision: the rights in the Bill of Rights may
be limited in terms of law of general application, but only to the extent that the
limitation is reasonable and justifiable in an open and democratic society based
on human dignity, equality and freedom, and taking into account certain factors
set out in the section. The rights are therefore not absolute, but may be restricted.
A new human rights culture has therefore been created which has a great in-
fluence on many facets of the law, including substantive criminal law. In the

________________________

4 For this reason it is not surprising to discover the many books on German criminal law
translated into foreign languages and to discern the influence of criminal-law theory in
countries as far apart as Japan in the Far East, the Spanish- and Portuguese-speaking
countries in South and Central America and, of course, continental Europe.
5 S 8(1) of the Constitution 108 of 1996.
10 CRIMINAL LAW

course of the discussion in this book attention will sometimes be drawn, where
applicable, to real or possible constitutional implications on the rules of crim-
inal law.

C THEORIES OF PUNISHMENT
1 Introduction This book contains an exposition of those rules of law which
stipulate when a person is guilty of a crime. However, determining criminal
liability is not an end in itself. After X has been convicted of a crime he must
be sentenced. A sentence usually profoundly infringes upon X’s basic human
rights, such as his right to freedom of movement, privacy and dignity. In a
society which values human rights, this infringement calls out to be justified.
The different answers given through the ages to the question of what right
society has to punish convicted offenders, together with supporting arguments,
are referred to as theories of punishment. The theories of punishment are of vital
importance. They seek to answer not only the question as to the justification of
punishment (and, by extension, the justification of the whole existence of crim-
inal law), but also what punishment ought to be imposed in each individual case.
These theories even have a direct impact on the construction of the general
principles of liability and of the defences afforded an accused.
2 Classification of theories There are various theories of punishment, some
very old, and some quite modern. The first classification distinguishes between
three theories: the absolute theory, the relative theories and the combination or
unitary theory. In the discussion which follows, the relative theories are further
classified into the preventive, deterrent and reformative theories. The deterrent
theory is subdivided into individual deterrence and general deterrence.
The following diagram sets out the classification of the theories.

Theories of punishment

Absolute theory Relative theories Combination theory

Retributive

Preventive Deterrent Reformative

Individual deterrence General deterrence

 INTRODUCTION 11

3 Difference between absolute and relative theories A distinction is made

between the absolute theory and the relative theories of punishment. There is
only one absolute theory, namely the retributive theory, while there are a num-
ber of relative theories. According to the absolute theory, punishment is an end
in itself; it is X’s just desert. The relative theories are also known as the utilitar-
ian, teleological or purpose theories. According to the relative theories, punish-
ment is only a means to a secondary end or purpose (hence the name “relative
theories”). This secondary purpose is different for each of the relative theories:
for the preventive theory it is the prevention of crime; for the deterrent theory it
is deterring the individual or society from committing a crime; and for the
reformative theory it is the reformation of the criminal.
The absolute theory is of a retrospective nature: one looks only at the past, that
is, at the crime that has been committed. If, on the other hand, one follows the
relative theories, one looks at the future: the emphasis is on the object (eg pre-
vention or reformation) that one wishes to achieve by means of the punishment.
4 The retributive theory
(a) Description of concept According to the retributive theory, punishment
is justified because it is X’s just desert. Retribution restores the legal balance
that has been disturbed by the commission of the crime. Punishment is the pay-
ment of the account which, because of the commission of the crime, X owes to
society.
This simple truth can be explained as follows in more detail: The legal order
offers every member of society a certain advantage, while at the same time
burdening him with an obligation. The advantage is that the law protects him in
that it prohibits other people from infringing upon his basic rights or interests,
such as his life, physical integrity and property. However, this advantage can
exist only as long as each member of society fulfils his obligation, which con-
sists in refraining from infringing upon other members’ rights. In other words,
there is reciprocity between the advantage and the obligation or duty. The
advantage has a price, namely the duty to refrain from injuring another’s in-
terests. If everybody exercises the required self-restraint and refrains from in-
juring another’s interests, the two scales of justice are evenly balanced; the
advantages and disadvantages are evenly distributed.
However, if a person voluntarily refrains from exercising the required self-
control and commits an act harming or injuring another’s interests, in circum-
stances in which he could have acted lawfully, the scales of justice are no
longer in balance. X (the wrongdoer) renounces a duty which others voluntarily
take upon themselves, and in so doing he acquires an unjustifiable advantage
over those who respect their duties to society. He enjoys the advantages of the
system without fulfilling his obligations. In so doing he becomes a “free rider”.
According to the philosophy underlying retribution (or “just desert”), X now
has a debt which he owes to society. By being given a punishment and by
serving such punishment he pays the debt he owes to society. In this way the
“score is made even again”.6 The two scales of justice become balanced again.
________________________

6 Snyman 2001 THRHR 218 224–227; Mafu 1992 2 SACR 494 (A) 497c-d, where the
court quoted the meaning of “retribution” in the Concise Oxford Dictionary (1990):
[continued]
12 CRIMINAL LAW

Retribution is therefore the restoring of the legal balance which has been dis-
turbed by the commission of the crime.
The retributive theory therefore does not seek to justify punishment with ref-
erence to some future benefit which may be achieved through punishment (such
as deterrence or prevention). Strictly speaking it is, therefore, not correct to de-
scribe retribution as a “purpose of punishment”. It is rather the essential charac-
teristic of punishment.
(b) The rebirth of retribution There was a time, not long ago, when retri-
bution was not held in high esteem in Western society. There was a belief,
strengthened by the growth of new disciplines such as sociology and psych-
ology, that crime could successfully be combatted by the utilitarian mechanisms
of deterrence and rehabilitation. This belief proved to be illusory, with the re-
sult that since about the seventies of the last century courts and writers, espe-
cially in the USA, have returned to retribution as justification of punishment.7
A new analysis of the writings of philosophers of the Enlightenment, such as
Immanuel Kant, revealed the links between retribution and the essential features
of justice, such as equality, freedom of will, moral responsibility, and linked to
all this, the dignity of man.8 The essence of retribution has come to be seen as
the restoring of the legal balance which has been disturbed by the commission
of the crime. To avoid equating retribution with vengeance, there is a tendency
to replace the term “retribution” with “just desert”. The expression “restorative
justice” is also sometimes used.
(c) Retribution does not mean vengeance The word “retribution” may have
more than one meaning. Without exploring all the different meanings and
nuances the term may have,9 attention is here drawn to one of the meanings
sometimes assigned to it, namely that of “vengeance”. By “vengeance” is
meant the idea of an eye for an eye and a tooth for a tooth. This is the “primi-
tive” or “Old Testament” meaning of the word10 – the so-called lex talionis.
According to this meaning of the term the very same harm or injury inflicted by
the wrongdoer should be inflicted upon himself.
It is completely wrong to assign this meaning to the term “retribution”. It might
have had this meaning in primitive societies, but modern writers on criminal
________________________

“requital for evil done”; Dressler 17; Sendor 1994 Journal of Contemporary Legal Issues
323 337–343, 350–357.
7 Snyman 2001 THRHR 218 221–222 Moore 84 ff; Morris ch 2; Dressler 16–19; Murphy
82–115, 223–245; Moore in Schoeman (Ed) 179–217; Hampton 1992 University of Cali-
fornia LR 1659 ff; Dressler 1990 Michigan LR 1448 ff; Fletcher 1994 Journal of Con-
temporary Legal Issues 101 ff; Arenella 1992 University of California LR 1511 ff;
Bainbridge 1985 American Bar Association Journal (May) 61 ff; Falls 1987 Law and
Philosophy 25 ff; Sendor 1994 Journal of Contemporary Legal Issues 324 ff; Byrd 1989
Law and Philosophy 152; Taylor 1981 Law and Contemporary Problems 46 ff; Cotton
2001 American Criminal Law Review 1313. (The very title of this article says it all. It
reads “Back with a Vengeance: the Resilience of Retribution as an Articulated Purpose of
Criminal Punishment”.)
8 See especially the articles mentioned in previous footnote by Falls 32–41; Hampton
1667–1671, and Murphy 82–92.
9 Such as, expiation or atonement, denunciation of the crime and the criminal, and the
mollification of society. See Snyman 2001 THRHR 218 222–225.
10 Genesis 9: 6; Exodus 21: 23–25.
 INTRODUCTION 13

law reject this meaning, and favour the more enlightened meaning described
above, namely the restoring of the legal balance which has been disturbed by
the commission of the crime.
(d) Degree of punishment must be in proportion to the degree of harm
According to the retributive theory the extent of the punishment must be pro-
portionate to the extent of the harm done or of the violation of the law. The less
the harm, the less the punishment ought to be, because the debt which the
offender owes the legal order is then smaller. This is illustrated by the fact that
the punishment imposed for an attempt to commit a crime is, as a rule, less
severe than for the commission of the completed crime. Again, the driver of a
motor vehicle who negligently causes a person’s death will receive a heavier
sentence than one who merely drives negligently but, fortunately for him, does
not seriously injure anyone or damage any property. By insisting upon the pro-
portionality between harm and punishment, retribution reveals its basic link with
the principle of equality, which is inherent in the principle of justice. The right
to equality is in fact enshrined in the South African Bill of Rights.11
The idea of a proportional relationship between harm and punishment, inher-
ent in the retributive theory, is of great importance in the imposition of punish-
ment. If the retributive theory were to be rejected and only the relative theories
followed, it would mean that punishment that is out of all proportion to the
seriousness of the crime committed, could be imposed. If the emphasis were
solely on prevention, the best thing to do would be to imprison for life each
thief who took even the smallest article. Such harsh punishment would prob-
ably also be the best form of deterrence. The reformative theory, applied in iso-
lation, would also have the result that a person who had committed a relatively
minor crime could be subjected to reformative treatment for a lengthy period in
an effort to cure him of his errant ways.
In short, punishment presupposes the idea of retribution. The retributive theo-
ry is accordingly the only theory that relates punishment directly to the com-
pleted crime and to the idea of justice.
(e) Expression of society’s condemnation of the crime According to the
retributive theory punishment expresses society’s condemnation, its emphatic
denunciation, of the crime. For this reason the retributive theory is sometimes
called “the expressive theory of punishment”.
By committing a crime the criminal by implication sends out a message to
the victim that he holds him in contempt, that he is his superior and that he
dominates him. Punishment in the form of retribution serves to cancel this mes-
sage of dominance, “brings down” the offender to the same level as the victim,
and expresses solidarity, not only with the victim, but with the maintenance of
justice in general.
(f ) Retribution respects freedom of will and explains necessity of culpability
requirement A very important difference between the retributive theory and the
relative (utilitarian) theories is the following: the retributive theory operates
within an indeterministic construction of society; it therefore presupposes that
________________________

11 S 9(1) of the Constitution. For a good example of the application of this principle, see
Mngoma 2009 1 SACR 435 (EC).
14 CRIMINAL LAW

man has a free will and that he may accordingly either be praised or blamed for
his actions. The relative or utilitarian theories, on the other hand, operate within
a deterministic construction, which, at least in its original, unadulterated form,
presupposes that man does not have a freedom of choice but is the victim of
outside forces such as heredity, the environment or upbringing. He is the prod-
uct of circumstances and is being manipulated or at least capable of being
manipulated by outside circumstances. The reformative theory, for example,
presupposes that the transgressor is a “sick” person who, like other sick people,
could be changed by therapy into once again becoming a “normal” law-abiding
citizen.
The importance of this distinction is the following: Free people can be held
responsible for their choices, provided the choices were made voluntarily. They
have in a certain sense merely brought the punishment upon themselves. They
can fairly be blamed for what they did and their punishment is their just desert.
They have earned their punishment. According to the utilitarian model, on the
other hand, the transgressor cannot be blamed for acting in the way he did,
because what he did was not the result of his own free choice, but of outside
forces. He may arouse our pity or compassion, but blame is out of place. After all,
one may blame another for his actions only if he could have avoided it, and ac-
cording to the relative theories X could not have avoided the wrongful acts. Since
the general requirement for criminal liability known as culpability (mens rea or
fault) is based on X’s blameworthiness, it is the retributive theory, and not the
utilitarian theories, which offers the best explanation of the culpability requirement.
If one considers the deterrent theory (a relative theory) one finds that people
can be deterred from crime even by punishing somebody who transgressed the
norms of criminal law while lacking culpability. One can in fact deter people
from crime even by punishing not X himself, but his family or friends (some-
thing which is not unknown in authoritarian regimes).
(g) Retribution respects human dignity By applying the retributive theory,
the legal order respects X’s human dignity, because X is treated not as a deper-
sonalised cog in a machine, but as a free, responsible human being. His pun-
ishment is founded upon his own free choice.12 As Kant emphasised, man’s
dignity requires him to be treated not as a means to an end, but as an end in
itself. His worth is not based upon his utility to others, as the utilitarians would
have him be, but upon an inherent, inalienable dignity. On the basis of retribu-
tion only, can X, after serving his sentence, look his fellow citizens in the eye
in the knowledge that he has “paid his account” and is therefore their equal
again. The utilitarian theories treat a person as an object to be manipulated or
conditioned, as one would treat an animal.
To abandon retribution and to justify punishment on utilitarian grounds only
is to treat the offender as somebody who is not the equal of other members of
________________________

12 Morris 42: “[I]n the therapy world nothing is earned and what we receive comes to us
through compassion, or through a desire to control us. Resentment is out of place. We can
take credit for nothing but must always regard ourselves . . . as fortunate recipients of
benefits or unfortunate carriers of disease who must be controlled. We know that within
our own world human beings who have been so regarded and who come to accept this
view of themselves come to look upon themselves as worthless.” See also Snyman 2001
THRHR 218 230–231.
 INTRODUCTION 15

society. Whereas the latter are all subject to the law and are therefore obliged to
pay the debts they may owe society according to their deserts, the offender is
treated as an exception, as somebody “different”. Society, in effect, tells him:
“You are not like the rest of us. We do not treat you according to your deserts
or (which is the same) your merit; we do not measure your worth by the same
yardstick by which we measure that of everybody else.” This in turn is tanta-
mount to giving the offender a sense of guilt for the rest of his life, for whereas
everybody else in society would be proud to pay their debt and thereafter to
look their fellow citizen in the eye as an equal, the offender is treated as an
exception to the rules applicable to everybody else; he is denied the opportunity
of functioning as an equal of others in a paradigm in which everybody is treated
according to his merits or desert.
5 The preventive theory We now turn our attention to the relative theories
of punishment. We shall first discuss the preventive theory, according to which
the purpose of punishment is the prevention of crime. This theory can overlap
with both the deterrent and the reformative theories, since both deterrence and
reformation may be seen merely as methods of preventing the commission of
crimes. On the other hand, certain forms of punishment are in line with the
preventive theory without necessarily also serving the aims of deterrence and
reformation. Examples are capital punishment, life imprisonment and the
forfeiture of, for example, a driver’s licence. If a legal system were to go so far
as to castrate certain sexual offenders, this too would be an application of the
preventive theory.
Some sources recognise a theory of punishment known as “incapacitation”.13
Closer scrutiny of this theory reveals that it is merely a variation of the preven-
tive theory. According to the theory of incapacitation X is punished in order to
prevent him being capable of committing crime again. This theory is closely
linked to the view that the purpose of punishment is the protection of society.
The success of the preventive theory depends largely upon the ability of a court
to establish beforehand which accused are so dangerous that they should per-
manently, or at least for a long period, be removed from society. However, it is
often difficult for a court to determine beforehand with certainty whether an
accused falls into this category. This is one of the points of criticism against the
efficacy of this theory. A convicted person’s record could, however, be used as
guideline: should it show previous convictions, indicating that he makes a habit
of committing crimes, the court may take this into account and sentence him to a
long term of imprisonment in order to prevent him from committing crimes again.
6 The theory of individual deterrence A distinction must be drawn be-
tween individual and general deterrence. Individual deterrence means that the
offender as an individual is deterred from the commission of further crimes,
and general deterrence means that the whole community is deterred from
committing crimes. The idea at the root of individual deterrence is to teach the
individual person convicted of a crime a lesson which will deter him from
committing crimes in the future. In South Africa the premise of this theory is
undermined by the shockingly high percentage of recidivism (offenders who
________________________

13 Eg La Fave 27; Allen 1.3.1.3; Burchell and Milton 73–74.

16 CRIMINAL LAW

continue to commit crime after being released from prison) – this lies in the
region of 90%14 and suggests that this theory is not very effective, in any event
not in South Africa.
7 The theory of general deterrence According to this theory the emphasis
is not, as in the previous theory, on the individual offender, who, by having
instilled fear in him, will supposedly be deterred from again committing crime.
The emphasis here is on the effect of punishment on society in general: the
purpose of punishment is to deter society as a whole from committing crime.
The belief is that the imposition of punishment sends out a message to society
that crime will be punished and that, as a result of this message, members of
society will fear that if they transgress the law they will be punished, and that
this fear will result in their refraining from engaging in criminal conduct.
There is a common misconception that the effectiveness of general deter-
rence depends only upon the severity of the punishment, and that this theory is
accordingly effective only if a relatively severe punishment is prescribed and
imposed. Although the degree of punishment is not irrelevant in judging the
effectiveness of this theory, the success of the theory in fact does not depend on
the severity of the sentence, but on how probable it is that an offender will be
caught, convicted and serve out his sentence. The theory is accordingly suc-
cessful only if there is a reasonable certainty that an offender will be traced by
the police, that the prosecution of the crime in court will be effective and result
in a conviction, and that the offender will serve his sentence and not be freed on
parole too early, or escape from prison.
If the police fail to trace offenders (as a result of, for example, understaffing,
bad training or corruption), the state prosecutor fails to prove an accused’s guilt
in court (as a result of, for example, shortages of personnel, bad training, or
lack of professional experience), or the prison authorities cannot ensure that a
convicted offender serves his sentence and does not escape before the expiry of
his sentence period, the deterrent theory cannot operate effectively. Prospective
offenders will then think it is worth taking a chance by committing the crime,
since the chances of their being brought to justice are relatively slim.
This is precisely the danger facing criminal justice in South Africa. It is well
known that a variety of factors, such as an understaffed police force, some
police officers and prosecutors lacking the required skills, possible corruption
and bad administration (factors which may all be traced back to a lack of funds)
considerably weaken the probability of a real offender being brought to justice
and punished. In fact, in the light of statistics showing how few offenders are
ultimately apprehended, prosecuted and sentenced, it is difficult not to conclude
that in South Africa it pays to commit crime.15 For this reason the theory of
general deterrence can only be of limited value in a country such as South Africa.
________________________

14 In June 1996 it was estimated that 94% of all prisoners who leave prisons continue to
commit crime. See SAIRR Survey 1996/1997 63. According to SAIRR Survey 1999/2000
91 between 88% and 90% of all convicted criminals committed crime again after being
released. See also Prinsloo 1997 SACJ 46 and the statistics mentioned in this article.
15 In 1996 it was estimated that of every 1 000 crimes committed in South Africa, only 450
were reported, 230 solved, 100 criminals prosecuted, 77 accused convicted, 33 accused
sentenced to imprisonment and 8 accused sentenced to imprisonment for periods longer
[continued]
 INTRODUCTION 17

Quite apart from the misgivings regarding the effectiveness of this theory,
attention must be drawn to certain further points of criticism against this theory.
Firstly, it must be remembered that this theory, in typical utilitarian fashion,
is based upon the premise that man prefers the painless to the painful, and that
he is a rational being who will always weigh up the advantages and disad-
vantages of a prospective action before he decides to act. However, this is by
no means always so, especially where a person commits a murder or assaults
someone in the heat of the moment.
A second point of criticism of the theory is that its basic premise, namely that
the average person is deterred from committing a crime by the punishment
imposed upon others, can presumably never be proved. To be able to prove it
one would have to know how many people would commit the crime if there
were no criminal sanction. This cannot be ascertained empirically. The deter-
rent effect of punishment on the community as a whole rests on faith rather
than on real empirical evidence.
A third point of criticism of the theory is that the requirement of culpability,
which is a cornerstone of criminal liability, cannot readily be explained by
merely relying on this theory: it is possible to deter people from committing
crime even by punishing those who transgress the rules of criminal law without
any culpability. If, for example, the law were to punish an insane person for
having committed an unlawful act, such punishment could still operate as a
deterrent to others.
The fourth and perhaps most important criticism of this theory is the follow-
ing: If one applies this theory, it becomes permissible to impose a punishment
on an offender which is not proportional to the harm he inflicted when he
committed the crime, but which is higher than a proportional sentence. This is,
after all, what happens if a court imposes a sentence which it wishes to operate
as a deterrent to others. In this way one individual is sacrificed for the sake of
the community, and that individual is degraded to being a mere instrument used
to achieve a further goal. Such a technique is open to criticism as being im-
moral, because, in accordance with the deterministic origin of this theory, the
accused is not (as in the case of retribution) regarded as a free, responsible agent
who gets only what he deserves, but is used as a means to an end, namely the
presumed improvement of society.16
8 The reformative theory This theory is of fairly recent origin. Its premise
is that the purpose of punishment is to reform the offender as a person, so that
he may become a normal law-abiding member of the community once again.
Here the emphasis is not on the crime itself, the harm caused or the deterrent
________________________

than 2 years (Nedcor Project on Crime, Violence and Investment June 1996; SAIRR Sur-
vey 1996/1997 63. Kotze 2003 SACJ 38 39 alleges that “the perpetrator of some serious
violent crimes have a less than 2% chance of being caught and punished”. According to
SAIRR Survey 2003/2004 395 the SA Law Commission has found that only in 1% of
murder cases, 5% of rape cases and 3% of cases of robbery with aggravating circum-
stances have there been convictions. Of all serious crime there have been convictions in
only 6% of cases. About 75% of all serious crimes have never even ended up in the
courts.
16 Cf the apt remarks in this regard in Dodo 2001 1 SACR 594 (CC) par 38.
18 CRIMINAL LAW

effect which punishment may have, but on the person and personality of the
offender. According to this theory an offender commits a crime because of
some personality defect, or because of psychological factors stemming from his
background, such as an unhappy or broken parental home, a disadvantaged
environment or bad influences from friends. The recent growth of the sociolog-
ical and psychological sciences has largely contributed to the creation of this
theory.
The following are some points of criticism against this theory: Firstly, the
theory does not provide for the punishment to be proportionate to the harm
inflicted or to the degree of violation of the law. The application of the theory
might entail the imposition of long periods of imprisonment (to afford enough
time for rehabilitation), even for crimes of a minor nature. Secondly, it is dif-
ficult to ascertain beforehand how long it will take to reform an offender.
Thirdly, the theory is effective only if the offenders are relatively young; when
it comes to older offenders it is very difficult, if not impossible, to break old
habits and change set ideas. Fourthly, experience has taught that rehabilitation
of the offender is more often than not an ideal rather than a reality. The high
percentage of recidivism is proof of this. Certain people simply cannot be
rehabilitated. However, the ideal of reformation may be indirectly advanced if a
court imposes a sentence which is suspended on condition that X subject
himself to a certain rehabilitation programme. The reformation then takes place
outside prison.
A fifth basic point of criticism is that, strictly speaking, it is not necessary to
wait for a person to commit a crime before one starts to reform him. A com-
pletely consistent application of this theory would mean that once a person
clearly manifests a morbid propensity towards certain criminal conduct (as, for
example, the kleptomaniac or the psychopath who cannot control his sexual
desires), one ought not to wait for him to commit a crime, but should have him
committed to a rehabilitation institution immediately so that an attempt can be
made to cure him of his problem. There would then be no relationship between
what happens to such a “sick person” and the commission of a crime. The
person requiring treatment would then no longer be a criminal, and the “treat-
ment” he received would then be viewed in the same light as the hospitalisation
of ill people. Even if one were to describe the treatment as “punishment”, it
would not entail any blameworthiness on the part of the person “treated”. In
fact, strictly speaking it is not even correct to describe the rehabilitative treat-
ment which the offender receives as “punishment”, because in this theory the
emphasis is not on any unpleasantness which the offender should receive, but
rather on measures aimed at making him a better person.
In the light of the above criticism of the theory it is not surprising that the
theory has lately lost its attractiveness in countries such as the USA and Eng-
land. However, South African courts still believe in rehabilitation as a purpose
of punishment in appropriate cases. Owing to the overpopulation of the prisons
as well as the lack of sufficient funds to implement the expensive treatment
programmes, it is doubtful whether this theory of punishment can be applied
with success in South Africa. In the light of the alarming increase in crime in
recent times in South Africa as well as the justified insistence of the community
(all population groups) that punishment reflect the abhorrence of crime, this
theory of punishment should not be granted too much weight.
 INTRODUCTION 19

9 The combination theory The courts do not reject any one of the theories
set out above outright but, on the other hand, they do not accept any single theory
as being the only correct one to the exclusion of all the others. Like other courts
in the Western world, our courts apply a combination of all the above-mentioned
theories, and for this reason one may speak of a combination theory.
The idea of retribution (not in the sense of vengeance, but in the sense of the
restoring of a disturbed legal balance) ought, in principle, to form the backbone
of our approach to punishment. There is no such thing as punishment devoid of
any element of retribution. The retributive theory is indispensable, for it is the
only one which decrees that there ought to be a proportionate relationship be-
tween the punishment meted out and the moral blameworthiness of the offender,
as well as between the degree of punishment, on the one hand, and the extent of
the harm done or the degree in which the law was violated, on the other hand.
The nature of the combination theory applied in a particular case is deter-
mined by the weight afforded to each of the particular theories contained in the
combination. Our courts emphasise that there are three main considerations to
be taken into account when sentence is imposed, namely the crime, the criminal
and the interests of society.17 By “crime” is meant especially the consideration
that the degree of harm or the seriousness of the violation must be taken into
account (retributive theory); by “criminal” is meant especially that the personal
circumstances of the offender, for example, the personal reasons which drove him
to crime as well as his prospects of one day becoming a law-abiding member of
society again must be taken into account (reformative theory); by “the interests
of society” is meant either that society must be protected from a dangerous
criminal (preventive theory) or that the community must be deterred from crime
(theory of general deterrence) or that the righteous indignation of society at the
contravention of the law must find some expression (retributive theory).
In a judgment which ought to be welcomed, the Supreme Court of Appeal in
2011 held in Matyityi18 that a court when imposing sentence should also take
into account the interests of the victim. After this decision it is perhaps more
correct to say that there are, according to the courts, four key considerations
that must be taken into account when imposing sentence, namely, the crime, the
criminal, the interests of the community and the interests of the victim.
There ought to be a healthy balance between these three considerations. A
court should not emphasise any one of them at the expense of the others.
Nevertheless, a close scrutiny of the case law reveals that the courts tend to
regard general deterrence as the most important purpose of punishment, and
that retribution no longer plays an important role. This approach to punishment
can be criticised, as will be shown below.19

________________________

17 Zinn 1969 2 SA 537 (A) 540; Khumalo 1984 3 SA 327 (A) 330; B 1985 2 SA 120 (A) 124;
Malgas 2001 1 SACR 469 (SCA) 478d; De Kock 1997 2 SACR 171 (T) 183; Cassiem
2001 1 SACR 489 (SCA) 494. See also generally the discussion in Terblanche 167–171.
18 2011 1 SACR 40 (SCA) par 16-17.
19 Infra par 10.
20 CRIMINAL LAW

It is impossible to combine these three considerations in a particular way

with specific weight allotted to each beforehand, and then to use this as a rigid
formula in all cases. Each case is unique and each accused differs from all
others. Our courts quite rightly emphasise the importance of the individual-
isation of sentences.20 However, this does not mean that the principle of ensur-
ing, in so far as this is possible, the uniformity of sentences where the relevant
circumstances in cases resemble each other, should therefore be thrown over-
board.21 A discussion of all the considerations (such as age, ability to pay a
fine, previous convictions) which ought to be taken into account when punish-
ing different types of crime and different types of offenders falls outside the
scope of this book.
10 Evaluation of existing rules relating to punishment The weight attribu-
ted in a specific country and at a specific time to each of the theories of pun-
ishment depends upon the particular circumstances in that country at that time.
Unlike in most other countries, crime levels have soared to alarming propor-
tions in South Africa in recent times.
It is submitted that, in the light of the particular circumstances in South
Africa, retribution (just desert) ought to have a higher priority than was until
recently the case. Considerations pertaining to the individual interests and
circumstances of the accused ought to receive less weight than in previous
times. It is time that the combatting of crime and the protection of society
receive the highest priority. More emphasis ought to be placed on retribution in
order to express society’s justified condemnation of crime.
The legislature has already taken a significant step towards the implemen-
tation of sentences to protect society when it enacted section 51 of the Criminal
Law Amendment Act 105 of 1997. This section provides for certain minimum
periods of imprisonment, including even mandatory life imprisonment in cer-
tain cases, unless there are substantial and compelling circumstances which
justify the imposition of a lesser sentence. The introduction of mandatory min-
imum sentences by the legislature should be welcomed. Although it fetters
judicial discretion relating to the measure of punishment, it is a necessary step
in the light of the crisis in which the administration of criminal justice finds
itself in this country.
Although considerations relating to the rehabilitation of the individual of-
fender should not be discarded completely, the reformative theory must neces-
sarily have a lower priority in this country. Reformation of offenders is costly.
South Africa does not have the financial means to realise the reformative ideals.

D THE CRISIS IN THE CRIMINAL JUSTICE SYSTEM

1 A dysfunctional criminal justice system The South African criminal
justice system, with the best will in the world, cannot be described as other than
dysfunctional. Since about 1990 crime has rocketed to levels never before

________________________

20 Zinn supra; B supra 125F–G; Matoma 1981 3 SA 838 (A) 843A.

21 Reddy 1975 3 SA 757 (A) 760; Goldman 1990 1 SACR 1 (A) 3d–e; Blank 1995 1 SACR
62 (A) 70.
 INTRODUCTION 21

experienced in this country. It is an embarrassing fact that neither the introduc-

tion of the new Constitution with its Bill of Rights nor the abolition of the death
sentence has succeeded in checking the staggering escalation of crime and
securing adequate personal safety for the citizens of this country.
2 Crime statistics The following statistics illustrate the alarming crime rate
in the country:
(a) Crime in general
• In 2011 it was estimated that 44 murders, 181 sexual crimes, 278 aggra-
vated robberies and 678 burglaries were committed every day in South
Africa.22
• In 2009 the World Economic Forum conducted a survey of 133 countries in
order to ascertain their economic competitiveness. In the section of the re-
port dealing with the safety of the citizens within the state – in other words
the incidence of crime – South Africa ended up right at the bottom of the
list.23
• Even when comparing South Africa with other African states, South Africa
fares particularly badly when it comes to the personal safety of individuals:
in 2011 the Mo-Ibrahim index, which measures the state of government in
the 53 states on the African continent annually, placed South Africa 44 out of
53 on the ranking list which deals with the personal safety of the country’s
inhabitants.24
• A study over two years by the South African Law Commission in about 2003
revealed that the percentage of convictions in South African was low. The
commission found that only 11% of murder cases, 5% of rape cases, and 3%
of cases of robbery with aggravating circumstances resulted in a conviction.
Of all serious crime only 6% resulted in a conviction. About 75% of cases
of serious crime never reached the courts.25
• According to a survey conducted in 2012 only 13% of females and 23% of
males of all races regarded it as safe to walk alone in the dark in the area
where they live.26
• According to a survey conducted in 2011 during a certain twelve-month
period 26,3 million Africans (77% of the total number questioned) person-
ally experienced the commission of crimes.27
• Between 1994 and 2013 the drug-related crime rate increased by 234%.28
• Because of the high crime rate, 25% of South Africans between 18 and 35
years of age of all population groups would like to leave the country and
settle elsewhere.29

________________________

22 SAIRR SA Survey 2010/2011 707

23 Press Report 9/9/2009.
24 Press Report 12/10/2011.
25 SAIRR SA Survey 2003/3004 395.
26 SAIRR SA Survey 2013 803.
27 SAIRR SA Survey 2013 800.
28 SAIRR SA Survey 2013 758.
29 Press Report 3/9/2012, reporting on a survey conducted by “Pondering Panda”.
22 CRIMINAL LAW

• In 2006 51% of the respondents in a survey said that they had had some-
thing stolen from their houses or were the victims of physical attack during
the previous 12 months.30
• It is estimated that the recidivism rate in South Africa is 94%. This means
that 94% of all prisoners who are released from prison because their periods
of imprisonment have expired commit crime again.31
(b) Murder
• From 1950 until about 1990 the average number of murders committed in
South Africa was approximately 7 000 per year. In 1978 it was, in fact,
5 644. During the first eight years of the new democratic dispensation the
average number of murders was about three times as high, namely 24 000
per year.32
• In 1990, the first year in which the moratorium on the death sentence was
introduced, the number of murders rose from 11 740 in 1989 to 18 569 in
1990.33
• During the first decade after the abolition of capital punishment (1990)
about a quarter of a million people were murdered.34 During the period be-
tween 2000 and 2013 this figure has, conservatively calculated, increased
with another quarter of a million people, which means that since the aboli-
tion of the death sentence and 2013 at least half a million people have been
murdered in this country.35
• The world average number of murders per 100 000 of the population is
about 6. The number of murders per 100 000 of the population in China and
Australia is 1, in Egypt and the United Kingdom 1.2; in most other Europe-
an countries about 2, and in France, Canada and India 4.36 The South Afri-
can figure of 31 per 100 000 means that it is more than five times higher
than the world average.
• The chance of murderers in South Africa escaping the clutches of the law is
high. According to a report of the police in 2011 only 27% of murders re-
ported to the police are solved by them. Of the cases solved only 30% end

________________________

30 Nedcor ISS SA Crime Quarterly Dec 2006 1.

31 SAIRR SA Survey 1996/1997 63.
32 Statistics obtained from the Institute for Security Studies. See also SAISS Crime Quarter-
ly Mar 2004 10, which sets out the murder statistics since 1938; SAIRR Survey 1982 211;
SAIRR Survey 1983 218. Van der Westhuizen 20 states that in 1976 5 729 murders were
committed, representing 23.9 out of 100 000 of the population, in 1977 the figure was
7 332 (29.9 per 100 000) and in 1978 5644 (20.8 per 100 000). In 1994/1995 25 965
murders were committed (SAIRR SA Survey 2003/2004 386), and in 1995/1996 26 877
(SAIRR Fast Facts Nov 2004 2).
33 Nedcor ISS Crime Index 1997 A5.
34 It is easy to make this computation. There were about 18 000 murders in 1990, thereafter
increasing to about 24 000 (some years even more than that number) a year. (See the sta-
tistics, with authorities, quoted supra par 2,5.) In fact, the number of a quarter of a mil-
lion murders may have been reached even before the year 2000.
35 Cf SAIRR SA Survey 2010/2011 721, where the number of murders per annum from 1994
to 2010 is specified. 14 years multiplied by 18 000 (murders per annum) equals 252 000.
36 Nedcor ISS SA Crime Quarterly Mar 2007 2; SAIRR Fast Facts May 2013 9.
 INTRODUCTION 23

up in court.37 This means that only about 8% of reported cases ultimately

end up in court, and of these only a certain number result in a conviction.
• More people are murdered in South Africa annually than those killed in
road accidents (16 259 compared to 13 803).38 This fact should be read to-
gether with the fact that the average number of people who die in car acci-
dents in South African (27 per 100 000) is three times higher than the world
average.39 South Africa is the only country in the world where the number
of people murdered annually is more than those killed in motor accidents
annually.40
• The chance of police officials being murdered in South Africa is twice as
high as that of an ordinary citizen, and the chance of a farmer being mur-
dered four times as high than that of an ordinary citizen.41
There is, however, light at the end of the tunnel. Since about 2000 the number
of murders per year gradually decreased. Whereas the number of murders in
1994/1995 was 25 965 (67 per 100 000 of the population), by 2012/2013 it
decreased to 16 259 or 31 per 100 000.42 Since about 2010 the number of
murders seems to have stabilised at around 16 500 per year. This decrease is no
doubt welcome news. However, it should not be forgotten that, as pointed out
above, the South Africa murder rate is still more than five times higher than the
world average. The 16 259 murders per year in South Africa translates into 31
murders per 100 000 of the population and an average of about 45 murders per
day, or about one murder every 30 minutes.43 Furthermore, the incidence of two
crimes closely associated with the commission of murders, namely household
burglary and robbery with aggravating circumstances, has increased significant-
ly between 1994 and 2013 – 13% and 25% respectively.44
(c) Robbery
• During a twelve-month period in 1994 to 1995 there were 32 659 cases of
common robbery. During the corresponding twelve-month period in 2012 to
2013 the number has increased by 64% to 53 540. As far as robbery with
aggravating circumstances is concerned, during the twelve-month period in
1994 to 1995 there were 84 785 cases of the commission of this crime. Dur-
ing the corresponding twelve-month period in 2012 to 2013 the number has
increased by 25% to 105 888.45
• According to a survey conducted by the United Nations among 65 countries
in 2000, the robbery rate per 100 000 of the population in South Africa was
460, whereas in the USA it was 141, in Russia 91 and in France 40.46
________________________

37 Press Report 17/10/2011.

38 SAIRR SA Survey 2012 733.
39 Press report 24/10/2012.
40 Press report 7/2/2010, quoting Kerwin Lebone of the SAIRR.
41 Press report, 24/10/2013, relying on a statement by Dr J Burger, senior researches or the
Institute for Security Studies.
42 SAIRR S A Survey 2013 752.
43 SAIRR S A Survey 2013 752.
44 SA Survey 2013 752 – 756.
45 SAIRR SA Survey 2013 752.
46 SAIRR SA Survey 2004/2005 467.
24 CRIMINAL LAW

• A survey in 2012 revealed that the conviction rate for house robberies in
South Africa is only 7.67%. (In the USA it is 53%).47
(d) Rape
• During a twelve-month period in 1994/1995 44 751 rapes were reported,
and in 2006/2007 52 617. This represents an increase of 18%.48
• In 2005/2006 it was estimated that an average of 150 women were raped
every day.49
• According to a survey conducted by the United Nations among 65 countries
in 2000, the rape rate per 100 000 of the population in South Africa was
123, whereas in the United Kingdom it was 14, in Thailand 6, in Hungary 5
and in India 1.50
• It is virtually impossible to ascertain the number of rapes per year after
2007, since the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 changed the definition of rape as well as a
number of other sexual crimes. The number of “sexual offences” committed
during a twelve-month period in 2012-2013 is given as 66 387.51
• A survey by the Medical Research Council conducted in 2012 in Gauteng
revealed that, although 48 003 cases of rape (presumably rape in the new,
wide definition of the word) were reported during a twelve-month period in
2011 to 2012, only one out of every 25 rapes actually committed were re-
ported to the police. On this basis the number of rapes during this period
must have been 48 003 × 25 = 1 200 075, which translates into 3 287 rapes
per day.52
(e) Housebreaking
• In 1994/1995 there were 231 355 cases of housebreaking. In 2012/2013
residential burglary alone has increased to 262 113 – an increase of 13%.53
In 2012/2013 there were, in addition 73 640 cases of non-residential burg-
lary, that is housebreaking in respect of business premises. The total number
of housebreaking cases in 2012/2013 is therefore 335 753,54 which trans-
lates into an average of 92 housebreakings per day. It has been estimated
that about 39% of residential burglaries are not even reported to the police,
inter alia, because the victims do not believe that the police will do some-
thing about it.55
3 Commentary on crime statistics While every right-minded citizen cannot
but welcome the introduction of the Bill of Rights into the South African
________________________

47 Finding by Prof Zinn of UNISA in his research for his PHD.

48 SAIRR Fast Facts Aug 2007 2.
49 Nedcor ISS SA Crime Quarterly Mar 2007 2.
50 SAIRR SA Survey 2004/2005 467.
51 SAIRR SA Survey 2013 752.
52 Press report 14/2/2013, relying on a research finding by the “Tswharanang Legal Centre”
and the Medical Research Council.
53 SAIRR SA Survey 2013 752.
54 SAIRR SA Survey 2013 752.
55 Press report, 4/5/2013, based on an article by Lizette Lancaster of the Institute for
Security Studies.
 INTRODUCTION 25

Constitution, the implementation thereof in the field of criminal justice in South

Africa has not been successful. Rather, it has led to an alarming increase in the
crime rate and a marked decrease in personal safety, while the administrative
services (police and court system) necessary for the implementation of the Bill
of Rights, have proved wanting.
A tree is known by its fruit. No matter what beautiful sounding phrases or
expressions are used (such as “right to life, dignity”, or “the sanctity of human
life”) in the formulation of basic legal principles, the ultimate test for determining
the success of a system – in this case the criminal justice system of South
Africa – is its practical results. If one considers the fruit of our present criminal
justice system – the alarmingly high crime rate, the ineffective policing and
prosecution of criminals, the congested prison system and, flowing from that,
the ever-present fear of crime pervading society – there is not much in our
criminal justice system to be proud of. There is too much one-sided emphasis
on the rights of accused and convicted persons and too little emphasis on the
legitimate rights to safety of law-abiding citizens.
Without real fruit (such as personal safety) becoming visible to ordinary,
law-abiding citizens, much of the human-rights concepts resounding in the field
of criminal justice (such as “human dignity”, “the sanctity of human life”) run
the risk of becoming mere ritualistic cant. Apartheid was characterised by the
use of such cant – empty phrases incompatible with the realities of everyday
life. We are running the risk of repeating the same type of error. We should not
allow ideology to be placed once again above reality, ideas above people.
There must be very few other countries in the world, and certainly no other
civilised countries, where fear haunts everyday life to the same extent as in
South Africa. A feeling of personal safety has decreased markedly since 1994.
If the purpose of the introduction of a Bill of Rights was to create a society
where there is, as far as possible, freedom of fear of one’s personal safety, then
the Bill of Rights has certainly not succeeded in its aim. It is difficult to counter
the argument that the authorities in South Africa are “soft on crime” and are
either losing the fight against it or at least not winning it. It is difficult to avoid
the perception that in South Africa crime is out of control.
Properties, especially private homes, are barricaded to look almost like small
prisons in order to protect the inhabitants from burglaries or robbers. Huge
amounts are spent on sophisticated alarm systems and on paying private securi-
ty firms to protect citizens – that is, to do what the police are supposed to do.
The inability of the police to protect the citizens properly is illustrated by the
fact that there are about 250% more guards employed by private security firms
than police officials.56 Citizens among all population groups create societies to
protect them from criminals. This entails, among other things, that thousands of
ordinary law-abiding citizens, men as well as women, periodically have to
expose themselves to danger while for example, by day or especially by night
they patrol their neighbourhoods to protect their families and neighbours. South
Africa has undoubtedly become one of the most unsafe countries in the world
to live in.

________________________

56 SAIRR SA Survey 2004/2005 511; SAIRR Fast Facts April 2013 4.

26 CRIMINAL LAW

How does one explain to a hypothetical objective observer that under the
unjust system of apartheid crime rates were significantly lower than under the
new, just human rights dispensation? Or must one assume that the price that the
country is presently paying in the form of crime and, together with it, the fear
and uncertainty with which every person has to wrestle daily, is but the normal
price for living in a free country with a human rights Constitution which re-
spects the supremacy of the rule of law? Why is this same situation absent in
other free societies?
There are a number of reasons for the crisis in the South African criminal
justice system, but one of them is the unduly high emphasis placed on the
relative theories of punishment (deterrence, rehabilitation) when sentencing
criminals. This downplays the pivotal role of just desert, and with it, the notion
of responsibility, always seeking to place the blame for crime on somebody or
something other than the criminals themselves.
4 Death sentence wrongly abolished? Linked to the whole debate about
theories of punishment and the rules of sentencing, is the question of the
feasibility of the death sentence for murder in South Africa. In Makwanyane57
the Constitutional Court held that the death sentence for murder is unconstitu-
tional, because it is cruel, inhuman and degrading, and incompatible with the
right to life and the right to dignity as guaranteed in the Constitution.
Makwanyane is one of the most remarkable decisions ever delivered in the
history of our criminal justice system, and one which probably has had the most
catastrophic consequences on society of any judgment relating to criminal
justice. Seldom, if ever, will one find a judgment the consequences of which
has been so exactly the opposite of what the court intended it to have. What the
court intended to achieve, was to protect and extend the right to life and the
value of human life (the much-vaunted “sanctity of human life”). What it
achieved, was exactly the opposite.
Never before in the peacetime history of this country has the value of human
life been lower than since the introduction of the “right to life”, the concept of
“the sanctity of human life” and, accompanying it, the abolition of the death
sentence. This statement is not merely a subjective, personal or even ideologi-
cal opinion. It is a cold statistical fact. The statistics mentioned above bear out
the truth of the statement. It is common-place to hear people from all walks of
life express the opinion that the value of human life in South Africa has been
reduced to that of the price of a cell-phone. It is not argued here that there is
anything wrong with the Bill of Rights and the right to life contained in it.
What is argued here is that the court in Makwanyane interpreted the Bill of
Rights incorrectly. The judgment is a failed attempt at social engineering. It does
not matter what intellectual gymnastics the proponents of the abolition of the
death sentence perform to justify their view; at the end of the day it is the cold
reality as reflected on the scoreboard below that tells one whether the judgment
was right or wrong. A criminal justice system which professes that the right to
life is the highest good, but which in practice ends up with one of the highest
pro rata murder rates (and crime rated in general) in the whole word, is a sick
system, operating with distorted principles.
________________________

57 1995 3 SA 391 (CC); 1995 2 SACR 1 (CC).

 INTRODUCTION 27

5 Arguments in favour of the death sentence South Africa can be proud of

its new Constitution and the Bill of Rights enshrined therein, and for having
turned its back on apartheid with all its evils. From this it does not necessarily
follow that abolishing the death sentence was correct. It is submitted that the
death sentence for murder ought to be reinstated. If the prevalence of crime in
general, and murder in particular, were more or less the same in South Africa as
in other civilised countries, there could, it is submitted, be no objection to the
abolition of the death sentence. However, in South Africa the incidence of
crime in general, and murder in particular, is so high that the reinstatement of
the death sentence is justified.
As justification for the abolition of the death sentence, great reliance was
placed on arguments that were advanced in legal systems of other countries
abroad. However, as pointed out above, in these countries the incidence of
crime in general and murder in particular is incomparably lower than in South
Africa. This raises the question: how certain can one be that the opinions on
capital punishment held in these countries, and upon which the abolitionists in
South Africa rely so heavily as support for their argument, also apply to the
situation in South Africa, with its population coming from cultural and socio-
economic backgrounds so different from those in the other civilised Western
countries?
There can be little doubt the death sentence does serve as a deterrent. Statis-
tics given above indicate clearly that during the almost forty years preceding
1990, when the death sentence was a competent sentence, the pro rata murder
rate was about three times lower than after 1990.58
Yet, even if (contrary to what the present author, many judges and other
highly respected lawyers and the public in general,59 believe) one were to
accept that the death sentence is not a deterrent, it still does not mean that the
abolition of the death sentence in this country is therefore justified. Deterrence
is not the only justification for punishment. Retribution cannot and must not be
overlooked. In fact, as was pointed out above,60 in a country such as South
Africa retribution ought to play a much more important role than considerations
relating to deterrence or rehabilitation. The idea of retribution or “just desert”
implies that punishment ought to be a reflection of the community’s condemna-
tion of crime. The abolition of the death sentence at present in South Africa is
not compatible with this fundamental principle of sentencing.
The protection of society plays an important role in sentencing. One of the
most important tasks of a state is to protect its citizens. If one considers the
crime wave sweeping across South Africa and, together therewith, the suffering
of victims of crime and the uncertainty and fear to which the whole community
is exposed, can one really allege that in South Africa the state has succeeded in
discharging this most basic of its duties? Section 7(2) of the Constitution states
that the state must respect, protect, promote and fulfil the rights in the Bill of
Rights. If the shockingly high murder rate mentioned above is kept in mind, it
is more than doubtful whether the state respects, protects and promotes the
________________________

58 Supra I D 2(b).
59 Infra text opposite fn 42.
60 Supra C 10.
28 CRIMINAL LAW

right to life (to mention only one of the fundamental rights) of innocent, law-
abiding citizens. Precisely the opposite is busy happening.
To allege that in this country we have succeeded in creating a culture of re-
spect for the sanctity of human life would be an affront to the ordinary person’s
common sense. It cannot be argued that there is respect for the sanctity of human
life, unless the “sanctity of life” of convicted murderers carries more weight
than that of the hapless victims of crime as well as all the potential victims –
and this includes the whole community. By what logic should the “sanctity of
life” in a country be measured by the number of murderers executed and not by
the number of innocent people murdered? The expression “sanctity of life”
seems to have been elevated in certain quarters to a pseudo-religious creed,
although in the minds of these people such sanctity relates only to criminals,
not to innocent victims of crime; nor does it relate to unborn foetuses.
The so-called “sanctity of human life”, which is relied so heavily upon by
abolitionists is a concept not free of sham and hypocrisy, for the law allows
lawful abortion upon extremely flimsy grounds. In 2013 about 90 000 lawful
abortions were performed in South Africa.61 In the decade between 1996 and
2006 more than half a million abortions were performed.62 The “sanctity of
human life” is a concept which is applied by certain people only when it suits
them, and discarded when it suits another lobby or pressure group.
What is more, the very existence of a punishment such as the much-vaunted
“imprisonment for life”, which has replaced the death sentence and which, ac-
cording to the abolitionists, is just as effective a deterrent as the death sentence,
must be taken with a pinch of salt, since somebody who has received such a
punishment may be, and generally is, released on parole.63 And even on the
assumption that “life imprisonment” means imprisonment for the rest of the
prisoner’s life, it is an illusion to assume that such a form of punishment serves
as an adequate deterrent for other would-be murderers.
The overwhelming majority of the population is in favour of the death sen-
tence.64 Clearly their view is correct.
Even if the reinstatement of the death sentence did not lead to a significant
decrease in the murder rate and crime in general, it would at least give the
________________________

61 SAIRR Fast Facts Nov 2013 22

62 Press report 24 Feb 2007.
63 S 73(6)(b)(iv) of the Correctional Services Act 111 of 1998 provides that a person who
has been sentenced to life imprisonment may not be placed on parole until he has served
at least 25 years of the sentence, but on reaching the age of 65 years a prisoner may be
placed on parole if he has served at least 15 years of such sentence. This means that if X
was sentenced to life imprisonment when he was 50 years of age, he may be released af-
ter only 15 years in prison.
64 A survey conducted in 1996 showed that almost three-quarters of the population were in
favour of the reintroduction of the death sentence. See SAIRR Survey 1996/1997 57. Ac-
cording to a survey the results of which were published by Kotzee in 2003 SACJ 38 55,
66% of the respondents stated that they were in favour of the death penalty. (Among the
respondents who were also members of the ANC, the figure was 60%.) According to a
survey conducted by the HRCS in 2004, 72% of blacks, 92% of whites, 76% of coloureds
and 86% of Asians were in favour of the death sentence. (Press report of 8 Oct 2004.) See
also Nedcor ISS SA Crime Quarterly 27.
 INTRODUCTION 29

community the feeling that justice is being done; that murderers pay for their
misdeeds; that there is a recognition of the community’s condemnation of the
crime; and that the murderer’s right to life does not carry more weight than the
right to life of the murdered victim or that of other members or society. The
reinstatement of the death sentence would, ironically, send out a message that
the law places a high value on life. Expressions such as “the right to life” and
“the sanctity of human life” would then have a concrete meaning for the people
of this country.

E CRIMINAL LIABILITY: A SUMMARY

1 General This summary of criminal liability is intended to help the person
who, in reading this book, is encountering criminal law for the first time. Its
purpose is to give such a person a perspective of the material to be discussed, to
help him understand the subdivisions and distinctions which will follow, and to
help him appreciate clearly the relationship between the different topics and the
different prerequisites for liability.
Although criminal law (like law in general) is not an exact science like math-
ematics which is governed by exact, immutable laws, jurists nevertheless en-
deavour to structure the rules of this branch of the law. In so doing they develop
and work with what might be called a certain “grammar of criminal liability”.
Such a structure or “grammar” enhances legal certainty and enables the investi-
gator to come to grips more readily with novel or unforeseeable sets of facts.
The discussion which follows may be viewed as a very concise summary of
the first half of this book, and is intended to aid the student who is commencing
the study of criminal law.
The book is divided into two parts. Part one deals with the general principles
of criminal law, in other words with those principles applicable to all crimes,
irrespective of the definition of each. Part two is devoted to a discussion of the
most important specific crimes known to our law, with the emphasis on those
rules or requirements peculiar to each.
In the discussion which follows and throughout the book the perpetrator of
the act – that is, the accused or wrongdoer – will be referred to as X, and the
complainant or victim will be referred to as Y. When a third party is involved,
he or she will be referred to as Z.
2 Requirements for liability
(a) Legality The very first question to be asked in determining somebody’s
criminal liability is whether the type of conduct forming the basis of the charge
is recognised in our law as a crime. A court may not convict a person and
punish him merely because it is of the opinion that his conduct is immoral or
dangerous to society or because, in general terms, it “deserves” to be punished.
A court must be certain that X’s alleged conduct (eg “the removing of a minor
from her parental home without the consent of her parents in order to marry
her” – conduct which amounts to the crime of abduction) is recognised by
the law as a crime. This very obvious principle is known as the “principle of
legality”.
(b) Act or conduct Once it is clear that the law regards the conduct as a
crime, the next step is to enquire whether there was conduct on the part of X.
30 CRIMINAL LAW

By “conduct” is meant an act or an omission. Since the punishment of omis-

sions is more the exception than the rule, this requirement of liability is mostly
referred to as the “requirement of an act”.
The requirement of an act or conduct incorporates the principle that mere
thoughts or even decisions are not punishable. Before there can be any question
of criminal liability, X must have started converting his thoughts into action.
Furthermore, for the purposes of criminal law conduct can lead to liability only
if it is voluntary. Conduct is voluntary if X is capable of subjecting his bodily
or muscular movements to his will or intellect. For this reason the bodily
movements of, for example, a somnambulist are not considered by the law to
amount to an “act”.
An omission – that is, a failure by X to perform active conduct – can lead to
liability only if the law imposed a duty on X to act positively and X failed to do
so.
(c) Conduct must comply with definitional elements of crime The following
general requirement for criminal liability is that X’s conduct must comply with
the definitional elements of the crime in question. What does “the definitional
elements” mean? It is the concise description of the type of conduct proscribed
by the law and the circumstances in which it must take place in order to consti-
tute a crime. By looking at the definitional elements, one is able to see how one
type of crime differs from another. For example, the definitional elements of
robbery are “the violent removal and appropriation of movable corporeal
property belonging to another”.
The definitional elements contain not merely a description of the type of
conduct proscribed (eg “injure”, “make a declaration” or “sexual intercourse”)
but may also contain a description of the way in which the act must be per-
formed (eg “violently”), the person performing the act (eg “a licence holder”),
the person or object in respect of which the act must be performed (eg “a
minor”), the place where the act must take place (eg “on a public road”), a
particular time during which the act must take place, and so forth.
Every particular crime has requirements which other crimes do not have. A
study of the particular requirements of each separate crime is undertaken in the
second half of this book. The requirement for liability with which we are dealing
here is simply that X’s conduct must comply with these definitional elements.
(d) Unlawfulness A lay person would probably be inclined to think that
once the requirements discussed above have been complied with, nothing more
is required for holding X liable and that he may be convicted. However, some-
body who is versed in the principles of criminal law will know that there are
still two very important further general requirements of liability, namely unlaw-
fulness and culpability, which must be complied with before X can be held
liable. The reason why a lay person will in all probability not think of these two
requirements is because they are, as it were, “unwritten” or “invisible”: they are
requirements of liability which are not always expressly spelt out in (especially
the statutory) definition of the crime. Their existence accordingly creates the
possibility that X may rely on defences which are not expressly spelt out in the
definitional elements of the crime in question.
We next consider the next general requirement for liability, namely unlaw-
fulness. The mere fact that X had committed an act and that such act complies
 INTRODUCTION 31

with the definitional elements of the crime does not necessarily mean that it is
also unlawful in the sense in which this word is used in criminal law. If a
policeman X gets hold of a criminal on the run by diving him to the ground,
X’s act accord with the definitional elements of the crime of assault, but his act
is not unlawful and he will therefore not be guilty of assault. To take another
example: X, while driving his motor car, exceeds the speed limit. This act
complies with the definition of the proscription of the offence “to drive a motor
car on a public road at a speed in excess of (say) 120 kilometres per hour”. If,
however, he does this in order to get his gravely ill child to hospital in time for
emergency treatment, his conduct will not be unlawful.65
“Unlawful” means, of course, “contrary to law”, but by “law” in this context
is meant not merely the rule contained in the definitional elements of the crime,
but the totality of the rules of law, and this includes rules which in certain
circumstances allow a person to commit an act which is contrary to the “letter”
of a legal prohibition or norm. In practice there are a number of well-known
situations where the law tolerates an act which infringes the “letter” of the law
as set out in the definitional elements. These situations are known as grounds of
justification. Well-known grounds of justification are private defence (which
includes self-defence), necessity, consent and official capacity. In the examples
above the act of the policeman is justified by the ground of justification known
official capacity, and that of the father who exceeds the speed limit by necessity.
If X’s conduct corresponds with the definitional elements, the conduct may
be described as “provisionally unlawful”. Before one can finally describe it as un-
lawful, it must be clear that there is no justification for the conduct. Grounds of
justification are situations in which the conduct at first glance seems to fall
within the letter of the prohibition, but where closer scrutiny reveals that the law
in fact tolerates such conduct. The reason why the law tolerates it (ie, regards it as
not being unlawful) is because the particular conduct protects a value or interest
which in the eyes of the law is more important than the value or interest which
the conduct infringes. If the meaning of the word unlawful within the present
context causes any problem, the problem can be overcome by always replacing
the word “unlawful” with “unjustified” or “without justification”.
(e) Culpability Even if the conduct corresponds not only to the definitional
elements but is also unlawful, it still does not necessarily mean that X is crimi-
nally liable. There is still one last important requirement which must also be
complied with, namely that X’s conduct must have been culpable. In the legal
literature, especially the older literature, as well as in the terminology used by
the courts, this element is described by the Latin expression mens rea. The
culpability requirement means that there must be grounds upon which X may,
in the eyes of the law, personally be blamed for his unlawful conduct. Here the
focus shifts from the act to the actor, that is, X himself, his personal abilities,
knowledge, or lack thereof. The culpability requirement comprises two compo-
nents or “sub-requirements”. Both these sub-requirements must be complied
with before one can draw the conclusion that X’s act was culpable.
The first of these sub-requirements is that of criminal capacity (often abbre-
viated merely to “capacity”). This means that at the time of the commission of
________________________

65 Pretorius 1975 2 SA 85 (SWA).

32 CRIMINAL LAW

the act X must have had certain mental abilities. A person cannot legally be
blamed for his conduct unless he is endowed with these mental abilities. The
mental abilities X must have are first, the ability to appreciate the wrongfulness
of his act (ie, to distinguish between “right” and “wrong”), and secondly, the
ability to act in accordance with such an appreciation. Examples of categories of
people who lack criminal capacity are mentally ill (“insane”) persons and young
children.
The second sub-requirement (or “leg” of the culpability requirement) is that
X’s act must be either intentional or negligent. Intention is a requirement for
most crimes, but there are also crimes requiring only negligence. If intention is
required, it means that X must will the fulfilment (realisation) of the definition-
al elements, knowing that his conduct is unlawful; or that he must foresee the
possibility of his conduct fulfilling the definitional elements and being unlawful
but nevertheless proceed with it. He must therefore know or foresee that the
type of conduct in which he is engaging is criminally punishable, that it takes
place in circumstances in which it fulfils the definitional elements of the crime
concerned, and that it is unlawful (ie, unjustifiable). If he does not know or
foresee it, his ignorance or mistake excludes intention.
The following are two examples of mistakes excluding intention: (a) X takes
property belonging to Y in the belief that Y had given him permission to take it,
whereas Y had in fact not given such permission. Y then lacks the intention and
culpability required for theft. (b) X wants to shoot a baboon. In the dusk he sees
a figure crouching which he believes to be a baboon, and shoots. The figure
struck by the bullet turns out to be, not a baboon, but a human being. X then
lacks the intention and culpability required for murder.
Some crimes require negligence instead of intention. An example of such a
crime is culpable homicide. This crime is committed if a person unlawfully and
negligently causes another’s death. By negligence is understood, in brief, that
X’s conduct does not comply with the standard of care required by the law in
the particular circumstances, or (as the same criterion is usually expressed in
another way) that X fails to act in the way in which a reasonable person would
act in the circumstances.
3 Different ways of grouping requirements Immediately above, under the
heading “Requirements for liability”, five requirements for liability have been
described. If one regards capacity as a requirement separate from culpability, as
some writers do, this means that six different general requirements for liability
can be identified, namely:
1 legality;
2 conduct;
3 compliance with definitional elements;
4 unlawfulness;
5 capacity; and
6 culpability.
This list contains all possible general requirements for liability. Is it not pos-
sible to reduce the requirements to a smaller number in order to simplify the
 INTRODUCTION 33

construction of criminal liability? The answer to this question is clearly affir-

mative. There are different ways in which to simplify the description of liability
by slightly rearranging the grouping of the requirements or “elements” for liabil-
ity. In the discussion which follows these different ways are briefly considered.
One cannot describe all six of these requirements as “elements of a crime”. The
first requirement, that of legality, is never regarded as an element of a crime in
the sense that the accused, by his conduct and subjective attributes, must comply
with this requirement. It is only necessary for the accused to comply with re-
quirements 2 to 6 above. This consideration is underlined by the fact that in more
than ninety-nine percent of criminal cases X is charged with a crime that is so
well known (eg assault, theft, culpable homicide) that the court will not waste its
time investigating whether in our law there is such a crime as the one with which
X is being charged. Only in fairly exceptional cases is it necessary for the court to
study, for example, a statute in order to ascertain whether what X is charged with
really constitutes a crime. This is another reason why the principle of legality is
not regarded as an “element” of a crime.
As far as the remaining requirements (2 to 6 above) are concerned, there are
different ways of grouping them, depending on the degree of abstraction that is
used.
Firstly, at a very high level of abstraction, it is possible to group the require-
ments into only two categories, namely wrongdoing and culpability. Wrongdoing
is an umbrella concept comprising requirements 2 to 4 listed above. If one fol-
lows this dichotomy, culpability invariably includes capacity. This grouping of
the elements of liability into only two categories is well known in continental
jurisprudence. It is also well known in Anglo-American legal systems, where
requirements 2 to 4 are described as “actus reus” and 5 and 6 as “mens rea”.
(These two Latin phrases will be avoided in this book, which seeks to explain
criminal-law concepts in language understandable to everybody. These phrases
are also avoided by modern English writers on criminal law. The South African
courts, however, regrettably still regularly use this obscure terminology.) Classi-
fying these requirements into only two groups is not advisable, because it is an
oversimplification of what is actually a more complex issue.
Secondly, many writers in South Africa divide the general requirements for
liability into three categories, namely the act, unlawfulness and culpability.66 In
this classification capacity is deemed to form part of culpability. Compliance
with the definitional elements is completely ignored as a separate requirement;
the indispensable definitional elements of a crime are artificially forced into
either the act or unlawfulness. This grouping of the requirements must be
rejected, as must any categorisation of the general requirements which ignores
compliance with the definitional elements as a separate requirement. No crime,
not even the simplest one, consists of only an act, unlawfulness and culpability.
Thirdly, there are writers who combine requirements 2 and 3 above. The result-
ant combined requirement is then called the “realisation of the definitional ele-
ments”. The requirement of an act is viewed as forming part of this “realisation” or
________________________

66 This is, in broad outline, the classification followed in De Wet and Swanepoel chs 3–5.
34 CRIMINAL LAW

“fulfilment”.67 These writers also view liability as consisting of three elements,

namely the above-mentioned element (which incorporates that of an act), unlaw-
fulness and culpability. This grouping of the requirements does have its merits,
but it is submitted that it is better and more logical to separate the requirement of
an act from that of realisation of the definitional elements. The concept “realisa-
tion of the definitional elements” is too abstract; it is better to base the construc-
tion of liability on the better known and more concrete concept of an act.
Fourthly, there is an arrangement or grouping of requirements which to my
mind is the best one, namely that whereby the general requirements for liability
are divided into four categories, namely the act (or conduct), compliance with
the definitional elements, unlawfulness and culpability. In this subdivision,
capacity forms part of culpability. It is also possible to regard capacity as a
requirement separate from culpability, in which case there would be five instead
of four categories. It is submitted that it is better to regard capacity as part of
culpability, the reason for this being the normative (as opposed to the psycho-
logical) nature of the concept of culpability.68 This four-part arrangement of the
requirements for liability will be followed in this book, the four parts or “ele-
ments” being conduct, compliance with the definitional elements, unlawfulness
and culpability.
The following description of criminal liability combines all four of the above
requirements: A person commits a crime if he engages in conduct which ac-
cords with the definitional elements of the crime in question, which is unlawful
and culpable. More concisely expressed, a crime consists in unlawful, culpable
conduct which accords with the definitional elements. If one wants to describe
criminal liability in less technical language, one can state that crime is unjusti-
fiable, culpable conduct which accords with the definition of a crime.
4 Sequence of requirements It is of the utmost importance to bear in mind
that the investigation into the presence of the four requirements or elements of
liability, set out above, follow a certain sequence. It is the sequence in which
the requirements were set out above. If the investigation into whether there was
(voluntary) conduct on the part of X reveals that there was in fact no such
conduct, it means that X is not guilty of the crime in question and the matter is
concluded. It is then unnecessary to investigate whether further requirements
such as unlawfulness and culpability have been complied with.
An investigation into whether the conduct complied with the definitional
elements is necessary only once it is clear that the conduct requirement has been
complied with. Again, only if it is clear that the conduct complied with the
definitional elements is it necessary to investigate the question of unlawfulness,
and only if the latter requirement has been complied with is it necessary to
investigate whether X’s act was also culpable. An inquiry into a later require-
ment therefore presupposes the existence of the previous requirements.

________________________

67 See eg Badenhorst 358–385 and the discussion in Eser and Fletcher 62–63.
68 See the discussion infra V A 9–10 of the psychological and the normative theories of
culpability.
 INTRODUCTION 35

The rule relating to the sequence in which the investigation into criminal
liability takes place can be depicted graphically as follows:

Was there a voluntary act or

No
omission?

Yes

Does the conduct comply with

the definitional elements of the No
crime?

Yes

Was the conduct unlawful? No

Yes

Was the conduct culpable? No

Yes

Accused liable Accused NOT liable

5 Murder and culpable homicide In conclusion, a hint to the reader who

has done no previous reading on criminal law: in the discussion of the general
principles which follows, the principles will often be illustrated by references to
the crimes of murder and culpable homicide. In order to follow the discussion
from the beginning, it is necessary to know what the definitions of these two
crimes are. Murder is the unlawful, intentional causing of the death of another
person. Culpable homicide is the unlawful, negligent causing of the death of
another person. It will be noticed that the only point of difference between
these two crimes is the form of culpability required for each: intention for
murder, and negligence for culpable homicide.

F THE PRINCIPLE OF LEGALITY

1 Introduction The modern state has expanded its powers to such an extent
that today, more than ever, it has become necessary to protect the freedom of
the individual. The principle of legality plays an important role in this regard.
In its broadest sense, the principle of legality can be described as a mechanism
to ensure that the state, its organs and its officials do not consider themselves to
36 CRIMINAL LAW

be above the law in the exercise of their functions but remain subject to it. In
the field of criminal law the principle fulfils the important task of preventing
the arbitrary punishment of people by state officials, and of ensuring that the
determination of criminal liability and the passing of sentence correspond with
clear and existing rules of law. The principle of legality in criminal law is also
known as the nullum crimen sine lege principle. (The Latin words, literally
translated, mean “no crime without a law”.)
2 Definition A definition of the principle of legality, embodying its most
important facets, can be formulated as follows:

1 An accused may not be found guilty of a crime unless the type of con-
duct with which he is charged:
(a) has been recognised by the law as a crime;
(b) in clear terms;
(c) before the conduct took place;
(d ) without the court having to stretch the meaning of the words and con-
cepts in the definition to bring the particular conduct of the accused
within the compass of the definition, and
2 After conviction an accused may not be sentenced unless the punishment
also complies with the four principles set out immediately above under 1(a)
to (d).69

3 Rules embodied in principle The principle of legality in criminal law

embodies the following five rules or principles:
(a) a court may find an accused guilty of a crime only if the type of conduct
performed by him is recognised by the law as a crime – in other words, a court
itself may not create a crime (the ius acceptum principle, which appears in item
1(a) of the definition given above);
(b) a court may find an accused guilty of a crime only if the kind of act per-
formed by him was already recognised as a crime at the time of its commission
(the ius praevium principle, which appears in item 1(c) of the definition given
above);
(c) crimes should not be formulated vaguely (the ius certum principle, which
appears in item 1(b) of the definition given above);
(d ) a court should interpret the definition of a crime narrowly rather than
broadly (the ius strictum principle, which appears in item 1(d) of the definition
given above);
(e) after X has been found guilty, the abovementioned four principles must
also be applied mutatis mutandis when it comes to imposing a sentence; this
means that the applicable sentence (regarding both its form and extent) must
already have been determined in reasonably clear terms by the law at the time
of the commission of the crime, that a court must interpret the words defining
________________________

69 As to the different sub-rules embodied in the principle, see Western Areas Ltd 2004 1
SACR 429 (W) 437.
 INTRODUCTION 37

the punishment narrowly rather than widely, and that a court is not free to
impose any sentence other than the one legally authorised (the nulla poena sine
lege principle, which can be further abbreviated to the nulla poena principle).
In the discussion which follows each of these five principles will be analysed
in greater depth. For convenience they will sometimes be referred to by their
concise Latin descriptions or “tags” mentioned above. The rules embodied in
the principle of legality as well as their subdivisions may be set out as follows
in a diagram:

Principle of legality

ius ius ius ius nulla

acceptum praevium certum strictum poena

in in
common- statutory
law crimes crimes

After a discussion of the rationale of the principle as well as of the recognition

of the principle in our Constitution, the sequence of the rest of the discussion of
this principle will correspond to the sequence in which the rules have been
arranged in the above diagram.
4 Rationale The rationale or basis of the principle of legality is the policy
consideration that the rules of the criminal law ought to be as clear and precise
as possible so that people may find out, with reasonable ease and in advance,
how to behave in order to avoid committing crimes. In American literature this
idea is often referred to as “the principle of fair warning”.70 For example, if it is
possible for the legislature to create a crime with retrospective effect and
consequently for a court to find X guilty of a crime even though the type of act
he committed was not punishable at the time of its commission, an injustice is
done since X is punished for behaviour that he could not have identified as
punishable before its commission. It is similarly difficult or even impossible for
a person to know in advance precisely what kind of conduct is punishable if the
definitions of crimes are vague or their content problematic, or if a court has the
power to decide for itself whether a certain type of conduct that had previously
gone unpunished should in fact be punished.
The principle of legality has its origin in the Age of Enlightenment, and more
specifically in the ideas of a group of thinkers in the seventeenth and especially
the eighteenth century who rebelled against the obscurities of the Middle Ages
and the excessive power of royalty, the aristocracy and the Church.
5 Recognition of the principle of legality in the South African constitu-
tion The principle of legality is incorporated in section 35(3)(l) and (n) of the
________________________

70 La Fave and Scott 104; Dressler 41–42.

38 CRIMINAL LAW

Constitution of the Republic of South Africa 108 of 1996. Section 35 forms

part of chapter 2 of the Constitution, which contains the Bill of Rights. The Bill
of Rights applies to all law, and binds the legislature, the executive, the judici-
ary and all organs of state.71 This means that every provision in a statute or
common law which is in conflict with the Bill of Rights may be declared null
and void by a court.
Section 35(3) provides that every accused person has a right to a fair trial,
and paragraph (l) of this subsection provides that this right to a fair trial in-
cludes the right not to be convicted for an act or omission that was not an
offence under either national or international law at the time it was committed
or omitted. A further paragraph in this subsection, namely paragraph (n),
contains a further provision bearing upon the principle of legality. According to
paragraph (n) the right to a fair trial includes the right to the benefit of the least
severe of the prescribed punishments if the prescribed punishment for the
offence has been changed between the time that the offence was committed and
the time of sentencing.
Section 35(3)(l) clearly incorporates the ius praevium principle. By implica-
tion it also contains the ius acceptum principle: if a court may not find a person
guilty of an act or omission that was not an offence at the time it was commit-
ted or omitted (ius praevium), it follows by necessary implication that a court
does not have the power to create a crime (ius acceptum). In other words, if a
court had the power to create crimes, it would mean that a court had the power
to convict a person of a crime even though X’s act did not constitute a crime at
the time it was performed.
Section 35(3)(n) relates to the nulla poena sine lege principle, that is, the role
of the principle of legality in the field of the imposition of punishment.
Section 35(3)(l) and (n) contains no provision relating directly to the ius cer-
tum and ius strictum principles, but the Constitutional Court may interpret the
provisions of the section in such a way that it relates to these aspects of the
principle of legality as well.72
The substantive criminal law of South Africa is not codified. The most im-
portant crimes, as well as almost all the general principles of liability, are
derived from common law and are therefore not contained in legislation. South
Africa is one of only a small number of countries or jurisdictions in which
criminal law is uncodified. This is regrettable.73 The absence of a codification
hampers the smooth operation of the principle of legality in this country,
although it does not render it impossible. In the place of a criminal code, a large
collection of authoritative decisions lays down the requirements for every
common-law crime as well as the general principles of criminal law. However,
________________________

71 S 8(1) of the Constitution of the Republic of South Africa 108 of 1996.

72 See the discussion infra pars 9 and 10.
73 For a draft criminal code of South Africa, containing not only definitions of common-law
crimes but also of the most important general principles of liability, see Snyman A Draft
Criminal Code for South Africa. With a Commentary. The introductory chapter of this
work contains a plea for the codification of our criminal law as well as a discussion of the
style which such a codification ought to adopt. See also Snyman Huldigingsbundel Strauss
255.
 INTRODUCTION 39

it is not easy for a lay person to ascertain what the definitions of crimes and the
general rules of criminal liability are.
6 The ius acceptum rule in common-law crimes What follows is a discus-
sion of the various rules embodied in the principle of legality as identified
above and which are referred to by their concise Latin descriptions: ius accep-
tum, ius praevium, ius certum, ius strictum and nulla poena.
First to be discussed is the ius acceptum principle. Thus principle implies that
a court may not find a person guilty of a crime unless the type of conduct he
performed is recognised by the law as a crime. In other words, a court itself may
not create new crimes. Therefore, when answering the question “what constitutes
criminal behaviour?” the court is bound by the “law as we have received it to
date”, that is, the ius acceptum. In South Africa ius acceptum must be under-
stood to denote not only the common law but also existing statutory law. The
ius acceptum principle is anchored in our law by virtue of the provisions of
section 35(3)(l) of the Constitution, which provides that every accused has a
right to a fair trial, which includes the right not to be convicted for an act or
omission that was not an offence at the time it was committed or omitted.
It is convenient to discuss the application of this principle under two head-
ings: first, the application of the rule to common-law crimes and secondly, its
application to statutory crimes.
Certain types of conduct might be wrong from a moral or religious point of
view, but might nevertheless not be prohibited by law. Even if they are prohib-
ited by law, this does not necessarily mean that they are crimes: perhaps they
may give rise to civil-law liability only or to the authorities’ taking certain steps
in terms of administrative law. Not all transgressions of the law constitute
crimes. For example, a simple breach of contract is not a crime. Only when
specific conduct is declared a crime by law (statutory or common law), is there
a possibility of criminal liability. Consequently, a court is not empowered to
punish conduct simply because it “deserves” to be punished according to the
judge’s conception of morality, religion or even politics. The only way in
which a new crime can be created is by means of legislation.74
Although a court may not create a crime or extend the scope of an existing
crime, it may create a new defence or extend the scope of an existing defence.
7 The ius acceptum rule in crimes created by parliament If parliament
wishes to create a crime, an Act purporting to create such a crime will best
comply with the principle of legality if it expressly declares (a) that the particular
type of conduct is a crime, and (b) what the parameters are of the punishment a
court must impose if it finds a person guilty of the commission of such a crime.
However, sometimes it is not very clear from the wording of the Act whether
a section or provision of the Act has indeed created a crime or not. In such a case,
the function of the principle of legality is the following: a court should only
assume that a new crime has been created if it appears unambiguously from the
________________________

74 Malgas 2001 1 SACR 469 (SCA) 472g–h. See also Solomon 1973 4 SA 644 (C), in
which the court refused to recognise the existence of a common-law crime named “con-
flagration”.
40 CRIMINAL LAW

wording of the Act that a crime has in fact been created. If the Act does not
expressly state that a particular type of conduct is a crime, the court should be
slow to hold that a crime has in fact been created. This consideration or rule
corresponds to the presumption in the interpretation of statutes that a provision
in an Act which is ambiguous must be interpreted in favour of the accused.75
In this regard it is feasible to distinguish between legal norms, criminal
norms and criminal sanctions that may be created in an Act.
• A legal norm in an Act is merely a rule of law, the infringement of which is
not a crime.
• A criminal norm is a provision in an Act stating clearly that certain conduct
constitutes a crime.
• A criminal sanction is a provision in an Act prescribing the parameters of
the punishment a court must impose once a person has been found guilty of
the particular crime.
The difference may be illustrated by the following example. A statutory prohi-
bition may be stated in one of the following three ways:
(a) You may not travel on a train without a ticket.
(b) You may not travel on a train without a ticket and anybody contravening
this provision shall be guilty of a criminal offence.
(c) You may not travel on a train without a ticket and anybody contravening
this provision shall be guilty of an offence and punishable upon conviction with
imprisonment for a maximum period of three months or a maximum fine of
R1 000, or both such imprisonment and fine. Provision (a) contains a simple
prohibition that constitutes a legal norm, but not a norm in which a crime is
created. Although non-fulfilment of the regulation may well lead to adminis-
trative action (such as putting the passenger off at the next stop) it does not
contain a criminal norm. A court will not, without strong and convincing indi-
cations to the contrary, hold that such a regulation has created a crime.76
Provision (b) does contain a criminal norm, because of the words “shall be
guilty of an offence”. However, it does not contain a criminal sanction because
there is no mention of the punishment that should be imposed.
Provision (c) contains both a criminal norm and criminal sanction. The crim-
inal sanction is contained in the words “and punishable upon conviction with
imprisonment for a maximum period of three months or a maximum fine of
R1 000, or both such imprisonment and fine”.
________________________

75 Milton and Cowling Introduction 1–16–19; Majola 1975 2 SA 727 (A) 735; Klopper
1975 4 SA 773 (A) 780. In Van Rooyen 2002 1 SACR 661 (T) the court refused to hold
that a mere provision in an Act placing a duty on a police officer to render certain assist-
ance, created a crime.
76 Bethlehem Municipality 1941 OPD 230; La Grange 1991 1 SACR 276 (C); Theledi 1992
1 SACR 336 (T) 337a–b; Smit 2007 2 SACR 335 (T). Contrast, however, Forlee 1917
TPD 52. An example of a provision in a statute creating a legal, but not a criminal norm
can be found in s 165(3) of the Constitution of the Republic of South Africa 108 of 1996,
which provides: “No person or organ of state may interfere with the functioning of the
courts.” The section does not provide that contravention of the prohibition constitutes a
crime.
 INTRODUCTION 41

What is the position if the legislature creates a criminal norm only, but re-
mains silent on the criminal sanction, as in provision (b) above? Such a situa-
tion arose squarely in Director of Public Prosecutions, Western Cape v Prins.77
The very important Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 (sometimes loosely referred to as the “Sexual
Offences Act”), which reformulated all the sexual offences in our law, clearly
stated that persons who committed the acts described in the Act, such as rape
and sexual assault, were guilty of a crime, but the Act failed to set out any
punishment to be imposed upon conviction for such crimes. The question
which the Supreme Court of Appeal had to decide was whether the provisions
in the Act referred to above nevertheless created crimes. The court answered
the question affirmatively. The decision is largely based upon principles relat-
ing to the interpretation of statutes, and more particularly the provisions of
section 276(1) of the Criminal Procedure Act 51 of 1977, which provides that a
person convicted of a crime may receive any of a number of sentences listed,
such as imprisonment, a fine and correctional supervision. The court held that
section 276(1) was a general provision empowering courts to impose sentences
in respect of all crimes, both common-law and statutory, where there is no other
provision in law prescribing the sentence or maximum sentence that could be
imposed for a specific crime. The extent of the punishment is in the discretion
of the court, subject only to provisions limiting a court’s powers of punishment,
as is the case in Magistrate’s Courts. This judgment affords strong support for
the proposition that if parliament creates a crime but fails to specify the pun-
ishment, the principle of legality has indeed been complied with, provided it is
clear from the legislative provision that the prohibition is described as an
offence and that parliament intended to create an offence.
In the unlikely event of a statutory provision containing a criminal sanction,
but not a criminal norm, in all probability the court will decide that the legisla-
ture undoubtedly intended to create a crime, and will assume that a crime was
indeed created.78
Although there are some cases in which the courts have not adhered strictly
to abovementioned principles,79 there are also some other, more recent, cases in
which the courts, after studying the Act as a whole, correctly refused to accept
that the legislature intended to create a crime by merely inserting a legal norm
without a criminal norm.80 The latter line of cases is to be preferred.
8 Prohibition on the creation of crimes with retrospective effect (ius
praevium) The principle of legality entails that no-one may be found guilty of
a crime unless at the moment it took place, his conduct was already recognised
by law as a crime. It follows that the creation of a crime with retrospective
effect (ie, the ex post facto creation of crimes) is in conflict with the principle
________________________

77 2012 2 SACR 183 (SCA), discussed by Terblanche and Jordaan 2012 SACJ 379.
78 Fredericks 1923 TPD 350 353; Rabie, Strauss and Maré 82; Burchell and Milton 99.
79 Forlee 1917 TPD 52 (criticised by De Wet and Swanepoel 46–47; Rabie, Strauss and
Maré 87 as well as in Francis 1994 1 SACR 350 (C) 354–356); Langley 1931 CPD 31
33; Baraitser 1931 CPD 418 and Grové 1956 1 SA 507 (SWA) 508–509.
80 La Grange 1991 1 SACR 276 (C); Theledi 1992 1 SACR 336 (T); Francis 1994 1 SACR
350 (C); Van Rooyen 2002 1 SACR 661 (T).
42 CRIMINAL LAW

of legality. This application of the principle of legality is known as the ius

praevium rule.
The ius praevium principle is incorporated in section 35(3)(l) of the Constitu-
tion, which provides that every accused has a right to a fair trial, which includes
the right not to be convicted for an act or omission that was not an offence
under either national or international law at the time it was committed or
omitted. This means that any provision by any legislative body which creates a
crime with retrospective effect is null and void.
9 Crimes must be formulated clearly (ius certum) Even if the ius accep-
tum and the ius praevium principles discussed above are complied with, the
principle of legality can still be undermined by the creation of criminal norms
which are formulated vaguely or unclearly.81 If the formulation of a crime is
unclear or vague, it is difficult for the subject to understand exactly what is
expected of him. At issue here is the ius certum principle. An extreme example
of an excessively widely formulated criminal prohibition would read as fol-
lows: “Anyone who commits an act which is harmful to the community com-
mits a crime.”82
One of the reasons why an excessively widely formulated criminal provision
violates the principle of legality is that such a provision can serve as a smoke-
screen behind which the state authority can “hide” a particular type of act
which it wishes to proscribe but which, for tactical reasons, it does not wish to
name expressly.
Although the Constitution does not expressly provide that vague or unclear
penal provisions may be struck down, it is quite possible and even probable that
section 35(3)(l) (which provides that every accused has a right to a fair trial,
which includes the right not to be convicted for an act or omission that was not
an offence at the time it was committed or omitted) will be interpreted in such a
way that vaguely defined crimes created in any legislation may be declared null
and void. This “void-for-vagueness” rule may be based on either X’s right to a
fair trial in general or on the principle that if a criminal norm in legislation is
vague and uncertain, it cannot be stated that the act or omission in question in
fact constituted an offence prior to the court’s interpretation of the legislation.
It is also possible to base the operation of the ius certum provision in our law
on the provisions of section 35(3)(a) of the Constitution, which provides that
the right to a fair trial includes the right to be informed of the charge with
________________________

81 Jordan 2002 2 SACR 499 (CC) 518c–d.

82 An example of a vaguely formulated statutory provision creating a crime can be found in
s 1(1)(b) of the Intimidation Act 138 of 1991, which provides inter alia that “any person
who . . . conducts himself in such a manner . . . that it might reasonably be expected that
the natural and probable consequences thereof would be that a person perceiving the act
fears for his own safety or the safety of his property or the security of his livelihood, or
for the safety of any other person or the safety of the property of any other person . . .”
(etc) commits the crime of intimidation. The “cosmic scope” of this provision was criti-
cised in Holbrook [1998] 3 All SA 597 (E) 601 (where the court stated that “[t]his section
is so widely couched that it may well be construed that a person who throws a cat into a
swimming pool may well be guilty of an offence . . .”) and Motshari 2001 1 SACR 550
(NC) 554–556.
 INTRODUCTION 43

sufficient detail to answer it. In Lavhengwa83 it was held that the right created
in section 35(3)(a) implied that the charge itself had to be clear and unambigu-
ous. This, according to the court, would only be the case if the nature of the
crime with which X is charged is sufficiently clear and unambiguous to comply
with the constitutional right to be sufficiently informed of the charge. It was
further held that, in order to comply with the requirement of sufficient clarity,
one should bear in mind, first, that absolute clarity is not required; reasonable
clarity is sufficient;84 and secondly, that a court which has to decide whether a
provision is clear or vague should approach the legislation on the basis that it is
dealing with reasonable and not foolish or capricious people.85
It is not only statutory criminal provisions that may, on the ground of vague-
ness, be declared null and void in terms of the Constitution, but also provisions
of common law that are vague and uncertain.86
However, it is impossible to comply with the ius certum principle in every
respect. It is impossible in any legal system – even one which best upholds the
principle of legality – to formulate legal rules in general, and criminal pro-
visions in particular, so precisely and concretely that there will never be any
difference of opinion regarding their interpretation and application.87 Legal
rules are not meant to apply merely to an individual person or to an event which
occurs only once; it is in the nature of legal rules that they be formulated in
general terms. Apart from this, language is not in all respects a perfect means of
communication, and even concepts such as “certainty” and “clarity” are relative
and a matter of degree. It is precisely for this reason that the principle of legal-
ity can never be complied with literally and fully in any legal system.
10 Provisions creating crimes must be interpreted strictly (ius strictum)
The fourth application of the principle of legality is to be found in the ius stric-
tum rule. Even if the above-mentioned three aspects of the requirement of
legality, that is, ius acceptum, ius praevium and ius certum, are complied with,
the general principle can nevertheless be undermined if a court is free to in-
terpret the words or concepts contained in the definition of the crime widely, or
to extend their application by analogous interpretation. The Constitution con-
tains no express provision relating to the ius strictum principle. However, it is
submitted that the provisions of section 35(3) – and thereunder paragraphs (a)
and (l) – are wide enough to incorporate this principle.
There is a well-known rule in the interpretation of statutes that crime-creating
provisions in both Acts of parliament and subordinate legislation must be
________________________

83 1996 2 SACR 453 (W) 483–485. See also the discussion of the role of vagueness in the
interpretation of penal provisions in National Coalition for Gay and Lesbian Equality v
Minister of Justice 1998 2 SACR 102 (W) 117–119.
84 Cf Pretoria Timber Co (Pty) Ltd 1950 3 SA 163 (A) 176H; Eneldoe’s Taxi Service (Pty)
Ltd 1966 1 SA 329 (A) 339G.
85 Cf O’Malley 1976 1 SA 469 (N) 474G; Mahlangu 1986 1 SA 135 (T) 141G–H.
86 In Friedman (1) 1996 1 SACR 181 (W) it was argued on behalf of X that the rule in
regard to the crime of fraud that the prejudice need be neither actual nor of a patrimonial
nature, was unconstitutional on the ground of vagueness. The court rejected the argument.
It is noteworthy that nowhere in the judgment did the court call into question the principle
that rules of common law may be declared null and void on the ground of vagueness.
87 Affordable Medicines Trust v Minister of Health 2006 3 SA 247 (CC) par 108.
44 CRIMINAL LAW

interpreted strictly.88 Sometimes this method of interpretation is referred to as

interpretation in favorem libertatis. The underlying idea here is not that the Act
should be interpreted to weigh against the state and in favour of X, but only that
where doubt exists concerning the interpretation of a criminal provision, X
should be given the benefit of the doubt.89
The rule that provisions which create crimes or describe criminal conduct
should be interpreted strictly rather than broadly, also applies to common-law
crimes. A court is not free to extend the definition or field of application of a
common-law crime by means of a wide interpretation of the requirements for
the crime.90 Therefore, if there is uncertainty about the scope of one of the
elements of a common-law crime, the court should interpret the definition of
such element strictly. A court may be unsure whether, according to our old
common-law sources, a specific kind of conduct can be brought under a partic-
ular recognised common-law crime. (Often, there is a difference of opinion
among our common-law writers on certain points of law.) A consistent applica-
tion of the principle of legality implies that in such cases, a court must accept
that the conduct does not fall under the definition of such a crime. It is prefera-
ble to leave it to the legislature (if it so wishes) to declare that such conduct
amounts to the commission of a particular crime (or to the commission of a
new statutory crime).91
On the other hand it would be wrong to infer from the above that if at any
time a person is charged with a common-law crime and the facts of the case do
not clearly correspond with those of any examples of the crime quoted by the
common-law authorities, X should, therefore, be acquitted. The principle of
legality does not mean that a court should so slavishly adhere to the letter of the
old sources of the law that common-law crimes are deprived of playing a
meaningful role in our modern society – a society which in many respects dif-
fers fundamentally from the society of centuries ago in which our common-law
writers lived. There are certain cases in which South African courts were pre-
pared to regard certain types of conduct as amounting to the commission of
common-law crimes, in spite of the fact that the common-law writers did not
cite the commission of these acts as examples of the crimes in question. Thus,
for example, the South African courts broadened the field of application of theft
by in certain situations relating to the theft of money deviating from the
________________________

88 Sachs 1953 1 SA 392 (A) 399–400; Stassen 1965 4 SA 131 (T) 134; Claassen 1997 1
SACR 675 (C) 680f–g.
89 Milton and Cowling Introduction 1–42 ff.
90 See, however, the discussion infra par 12 of the judgment of the Constitutional Court in
Masiya v Director of Public Prosecutions 2007 2 SACR 435 (CC).
91 Augustine 1986 3 SA 294 (C) 302I–J; Mintoor 1996 1 SACR 514 (C) 517A–B (but
contrast Ndebele 2012 1 SACR 245 (GSJ). The decisions in Sibiya 1955 4 SA 247 (A)
(relating to theft) and Von Molendorff 1987 1 SA 135 (T) (relating to extortion) constitute
two examples of the correct application of this principle. In Sibiya’s case the Appellate
Division held that because of doubt that existed over the question of whether the mere
temporary use of another’s property (furtum usus) constituted theft according to our
common-law authorities, such conduct should not be regarded as amounting to theft.
Schreiner JA declared at 256: “There should if possible be a high degree of rigidity in the
definition of crimes; the more precise the definition the better.” Contrast, however,
Ndebele supra.
 INTRODUCTION 45

well-known rule of common law that only corporeal, movable property can be
stolen; they held that a person can commit theft even though the object of the
appropriation is merely an “abstract sum of money” or “credit” (which in many
cases amounts, technically speaking, to nothing more than a claim against a
bank).92
11 Extending the scope of existing crimes by analogy not permitted The
ius strictum principle implies further that a court is not authorised to extend a
crime’s field of application by means of analogy to the detriment of X. Other-
wise a court would be free to extend the definition or field of application of an
existing crime by means of a wide interpretation of the requirements for the
crime. This rule applies just as much to statutory crimes as to common-law
crimes.93 Analogy refers to a partial resemblance between two concepts; since
the resemblance is partially only, it follows that in other respects the two con-
cepts differ from one another. Although it is not permissible to extend the de-
scription of punishable conduct by means of analogy, in criminal law there is
no objection to the extension of defences by analogy.94 The borderline between
legitimate interpretation of a legal provision and an illegitimate extension there-
of (whether by analogy or otherwise) is fluid and not always easy to ascertain;
nevertheless one is here dealing with a valid and necessary borderline.95
However, as far as this aspect of the principle of legality is concerned, there
is unfortunately a fly in the ointment: that is the judgment of the Constitutional
Court in Masiya v Director of Public Prosecutions.96
12 The judgment in Masiya In Masiya v Director of Public Prosecutions97
the Constitutional Court extended the scope of the common-law crime of rape
to include not merely sexual penetration of a woman by a man’s penis through
her vagina, but also such penetration through her anus. This judgment was
delivered before the legislature enacted a new broader definition of rape.
Before this judgment was delivered, intercourse with a woman through her
________________________

92 Infra XVIII A 15; Kotze 1965 1 SA 118 (A); Verwey 1968 4 SA 682 (A) 687. Another
example of a case in which a court was prepared to extend the field of application of a
common-law crime is Burger 1975 2 SA 601 (C). In this case the court held that the
crime of defeating or obstructing the administration of justice could be committed by
making a false declaration to the police, despite the fact that no examples of the offence
being committed in this way are given in the common-law authorities.
93 Oberholzer 1941 OPD 48 60. A good example of a case in which the court refused to
extend the area of application of a criminal norm by means of analogy is Smith 1973 3
SA 945 (O). In this case X was charged with having been in possession of indecent pho-
tographic material, in contravention of certain provisions of Act 37 of 1967. However, it
appeared that the pictures in his possession were photostat reproductions. The court re-
fused to extend the provisions of the Act and X was acquitted.
94 Jescheck and Weigend 134–135; Schönke-Schröder n 31 ad s 1; Labuschagne 1988 SACJ
52 67. Thus, the Appellate Division in Chretien 1981 1 SA 1097 (A) held that the de-
fence of a lack of criminal capacity should not be limited to cases of mental illness and
youth, but should also be extended to apply to certain cases of intoxication. There can
therefore be no objection against the extension by way of analogy of the scope of a
ground of justification, since this is to X’s advantage – Mnanzana 1966 3 SA 38 (T).
95 Augustine 1986 3 SA 294 (C) 302I–393B; Von Molendorff 1987 1 SA 135 (T) 169H–I.
96 2007 2 SACR 435 (CC).
97 Supra.
46 CRIMINAL LAW

anus was punishable as indecent assault. The judgment of the Constitutional

Court amounts to the court extending the scope of the (common-law) crime of
rape to include a type of situation not previously included in its definition,
thereby broadening its field of operation.
This judgment is undoubtedly wrong. It is a disturbing judgment, as it clearly
undermines the whole application of principle of legality, which is the corner-
stone of a civilised criminal justice system. The Constitutional Court arrogated
to itself the right to redefine crimes, even if it amounts to broadening the field
of operation of the existing definition.
The court based its judgment on the provisions of section 39(2) of the Consti-
tution, according to which the court has to harmonise the common law with the
spirit, purport and objects of the Bill of Rights. By extending the definition to
cover also penetration through the anus, the court stated that it would “express
the abhorrence with which our society regards these pervasive but outrageous
acts”.98 The whole argument of the court that it is irrational and illogical to
regard intercourse per anum as constituting a crime different from intercourse
per vaginam, and that the drawing of such a difference discriminates arbitrarily
against women99 is incorrect. The difference between these two types of inter-
course has a rational and logical basis namely, the anatomically difference
between men and women100 as well as the fact that the main or at least one of
the main reasons for criminalising rape is to protect the woman from becoming
pregnant without her will – a consideration which is completely lacking in the
case of intercourse per anum.
This, however, is not the only point of criticism against the judgment as far
as the principle of legality is concerned. The following point of criticism of the
judgment is that it sets a disturbing example: the principle applied by the court
is that (i) if the court is of opinion that conduct which presently does not fall
within the definition of a crime should fall thereunder because it is analogous
to the conduct presently falling within the definition, (ii) that both types of
conduct relate to the same right(s) protected in the Bill of Rights, and (iii) that
it is feasible that the conduct hitherto falling outside the definition should be
punished with the same punishment as that prescribed for conduct falling under
the existing definition, then the court is free to enlarge the definition of the crime
in order to accommodate conduct not previously punished under that heading.
Say, for example, that (before the legislature enacted new legislation dealing
with sexual crimes) X places his penis in a woman’s mouth without her con-
sent. This may likewise be described as just as heinous, abhorrent, repre-
hensible and a violation of the woman’s dignity, freedom, privacy and bodily
________________________

98 Par 44.
99 See especially the argument of the magistrate as well as the judge in the court which
first heard the issue, reported in Masiya 2006 2 SACR 357 (T) 363–364, 378–379.
100 Males and females are created differently in that below the waist males have only one
orifice which can be sexually penetrated, namely the anus, whereas females have two,
namely the anus as well as the vagina. To regard this difference as amounting to dis-
crimination or inequality is incorrect. It would amount to “putting God in the dock” be-
cause He (or She or evolution or whoever or whatever one believes to have created the
world and mankind), by creating two different types of people, failed to obey the (pre-
sent “politically correct”) ideology that there ought to be no differences between people.
 INTRODUCTION 47

integrity. Must we now accept that this latter type of conduct also amounted to
the crime of (common-law) rape? Presumably the answer to this question is
“yes”. Once the Constitutional Court recognises the validity of what it calls the
“incremental development of the common law” (to use the euphemistic expres-
sion used by the court as a description of its “right” to extend the ambit of
existing crimes by way of analogy), there is no knowing where this analogous
extension of crimes will end.101 Are we now returning to the year 1888, when
the court in Marais102 held that judges are custodes morum – the guardians of
the morals?
This judgment sets a dangerous precedent, because it undermines the prin-
ciple of legality. It flies in the face of a cornerstone of the rule of law, namely,
the threefold partition of the state’s powers into legislative, executive and
judicial. Instead of leaving it to the legislature to extend the definitions of
________________________

101 One can think of many examples of crimes other than rape in respect of which the scope
may be enlarged by arguments based on analogy. The following three examples make
this clear: The common-law crime of housebreaking with intent to steal cannot be
committed in respect of a motor car. If X breaks into a motor car with the intent to steal
something inside, he can at most be convicted of malicious injury to property in respect
of the car (as well as theft, if he appropriates something inside the car). Yet one can ar-
gue that the social danger of breaking into a car is just as great as the social danger of
breaking into some other structure used for the storing of goods, no matter how small or
flimsy it is – which according to our law is something that does qualify as a structure in
respect of which housebreaking can be committed. Both crimes, or types of situations,
are related to the right to property enshrined in s 25 of the Constitution. The two types
of conduct are analogous. What is more, the punishment imposed for housebreaking
with intent to commit a crime is usually more severe than that imposed after a convic-
tion of malicious injury to property. Must we now, on the strength of the judgment in
Masiya, assume that the courts may hold that the definition of housebreaking should be
broadened in order to include also the breaking into a motor car (or perhaps even a
whole list of other structures or containers in respect of which the crime can presently
not be committed)?
A second example is the common-law crime of arson. This crime can only be
committed in respect of immovable property (Motau 1963 2 SA 521 (T) 522). If one
sets a motor car or a railway truck alight, the perpetrator can therefore not be convicted
of arson but only of malicious injury to property. But once again one can argue that the
social danger of setting a car alight is just as great as the social danger of setting some
immovable structure, however small, alight; that both crimes relate to the same right en-
shrined in s 25 of the Constitution, namely the right to property; that the two types of
conduct are analogous, and that the punishment for arson is usually more severe than
that for malicious injury to property. Does this now mean that a court may one day hold
that the definition of arson must be extended to include the setting alight also of mova-
ble property?
A third example is the common-law crime of theft. Generally speaking, theft cannot
be committed in respect of incorporeal property, such as an idea, a tune, or a plot of a
story. Yet the unlawful appropriation of the latter “things” may, just as theft of corpore-
al property, be turned to economic advantage. The use of analogy allows one to regard
the unlawful appropriation of at least certain incorporeal things as theft. One may argue
that such appropriation is socially and economically just as objectionable as traditional
theft. Does this now mean that a court may by way of “incremental development of the
common law” enlarge the field of operation of common-law theft to include also the
appropriation of such incorporeal property?
102 (1888) 6 SC 367.
48 CRIMINAL LAW

crimes, the court simply arrogates to itself the power to do so. On the European
continent, where the principle of legality is held in high esteem (and where it
also originated), courts do not have the right to extend the definition of existing
crimes to include situations which are not covered by the existing definition.103
One of the reasons for this rule applied on the European continent is that if
there were no rule prohibiting the extension of crimes by way of analogy,
judges would be unduly swayed by emotional considerations, the public media
and pressure groups instead of approaching the matter in objective and abstract
terms. It is, by the way, noticeable that the judgment in Masiya teems with
emotionally-charged language and expressions.104 It is difficult to think of any
other judgment of our courts that are based on such emotionally charged
adjectives as the judgment in this case. In reality one should not be surprised at
the emotionally charged nature of this judgment, because if a court turns its
back on the perfectly rational principle on which the former common-law crime
of rape is based (namely the prohibition on vaginal penetration of a woman by
a man’s penis without consent, in order to prevent the woman from becoming
pregnant without her consent), all that remains for the court to rely on for its
alternative opinion, is recourse to emotion.
Much more acceptable than the judgment in Masiya is the judgment of
Froneman J in Mshumpa.105 In this case the prosecution invited the court to
extend the definition of murder so as to include the unlawful, intentional killing
of a foetus. The court refused to extend the ambit of the crime as requested by
the prosecution. This case was decided after the judgment in Masiya had been
delivered. The court in Mshumpa referred to the judgment in Masiya but
refused to follow it, declaring that it is the duty of parliament, and not the
courts, to extend the definitions of crimes, and that section 39(2) of the Consti-
tution cannot be used to circumvent the operation of the principle of legality.
________________________

103 Cf the judgment of the European Court of Human Rights in Kokkinakis v Greece (1994)
16 EHRR 397 par 52, where the court quite correctly held that “the criminal law must
not be extensively construed to an accused’s detriment, for example by analogy”. (See
the discussion of Hoctor 2007 Annual Survey 289.) See further the discussion in
Jecheck and Weigend 134; Jakobs 82, who warns against interpreting a criminal provi-
sion in more general terms than is allowed (“Generalisierungsverbot”); Roxin 102;
Hazewinkel-Suringa-Remmelink 487, who states that the reason for this prohibition (on
analagous interpretation) is that judges may be unduly swayed by emotional considera-
tions, the public media and pressure groups instead of approaching the matter in gen-
eral, abstract terms, as parliament usually does.
104 Cf eg par 9, 28, 30, 36, 44, 79. For criticism of the judgment of the Transvaal court in
the Masiya case, see Hoctor 2007 SACJ 78, especially 86. For detailed criticism of the
Constitutional Court’s judgment in Masiya, see Snyman 2007 SALJ 677, Hoctor 2007
SACJ 78; Ramosa 2009 SACJ 353. However, Phelps 2008 SALJ 638, Freedman 2008
SACJ 244-252 and Kemp in Du Plessis and Lubbe (ed), A Man of Principle. The life
and legacy of JC de Wet (2013) 387-388, defend the judgment. Freedman’s statement
on 252 that “the power to extend a common-law crime or to create a new common-law
crime has been conferred by s 39(2) on the courts because they are the ‘protectors and
expounders of the common law’” goes too far. A statement such as this would have
been music in the ears of the Nazi judges in Germany.
105 2008 1 SACR 126 (EC).
 INTRODUCTION 49

13 The principle of legality in punishment In the discussion so far, atten-

tion has been paid to the application of the principle of legality to the creation,
validity, formulation and interpretation of crimes or definitions of crimes. When
dealing with the imposition of punishment, the ius acceptum, ius praevium, ius
certum and ius strictum principles apply equally. The application of the prin-
ciple of legality to punishment (as opposed to the existence of the crime itself)
is often expressed by the maxim nulla poena sine lege – no penalty without a
statutory provision or legal rule.
The application of the ius acceptum principle to punishment is as follows: in
the same way as a court cannot find anyone guilty of a crime unless his conduct
is recognised by statutory or common law as a crime, it cannot impose a punish-
ment unless the punishment, in respect of both its nature and extent, is recog-
nised or prescribed by statutory or common law.106 In the case of statutory
crimes, the maximum penalty which can be imposed for each crime is usually
specifically set out. If the legislature creates a crime, it should, in order to best
comply with the principle of legality, also set out the punishment for the crime.
This limits the possibility of an unusual, cruel or arbitrary punishment being
imposed. If the legislature creates an offence but omits to specify the punish-
ment, then the punishment is in the discretion of the court.107
The application of the ius praevium principle to punishment is as follows: if
the punishment to be imposed for a certain crime is increased, it must not be
applied to the detriment of an accused who committed the crime before the
punishment was increased. Section 35(3)(n) of the Constitution provides that
the right to a fair trial includes the right to the benefit of the least severe of the
prescribed punishments if the prescribed punishment for the offence has been
changed between the time that the offence was committed and the time of sen-
tencing.108 The rule against the retrospective operation of sentences does not
apply to cases in which the legislature reduces the punishment. The reason for
this exception is that provisions in an Act which benefit the citizen do operate
retrospectively.109 The application of the ius certum principle to punishment is
that the legislature should not express itself vaguely or unclearly when creating
and describing punishment.
The application of the ius strictum principle to punishment is that where a
provision in an Act which creates and prescribes a punishment is ambiguous,
the court must interpret the provision strictly. Furthermore, a court may not ex-
tend by analogy the provision which prescribes the punishment to cases which
the legislature could not have had in mind.

________________________

106 Malgas 2001 1 SACR 469 (SCA) 472g–h; Dodo 2001 1 SACR 594 (CC) 604e–f.
107 Milton and Cowling Introduction 1–20.
108 Senyolo 2010 2 SACR 571 (GHJ).
109 Sillas 1959 4 SA 305 (A) 308; Milton and Cowling Introduction 1–28.
 CHAPTER
II

CONDUCT

A CONDUCT (ACT OR OMISSION)

1 “Conduct”, “act”, “omission” The first general requirement for criminal
liability is that there must be conduct on the part of X. By “conduct” is under-
stood an act or an omission. “Act” is sometimes referred to as “positive conduct”,
“commission” or commissio and an “omission” as “negative conduct”, “failure
to act” or omissio.
From a technically correct point of view the term “act” does not include an
“omission”. “Act” is rather the exact opposite of an “omission”. There is no
general concept which embraces them both. The two differ from each other as
day and night, because to do something and not to do something are exact
opposites. The word “conduct” may refer to both of them, but the use of the
word “conduct” is merely a formal, linguistic device of referring to both of
them simultaneously. On a material level the differences remain.1 This is con-
firmed by the fact that the legislature, when referring to this first element of
criminal liability, regularly speaks of “act or omission” or uses an expression
such as “somebody who commits an act or fails to commit an act”.2
To be technically correct one would, therefore, always have to speak of “an
act or an omission” when referring to this first basic element of liability. Since
this expression is somewhat strained, and since the punishment of omissions is
more the exception than the rule, writers tend to use the word “act” in a wide
________________________

1 In German criminal-law theory, which strives toward a description of the principles of

criminal liability which is as systematic as possible, there has for decades been a heated
debate on whether it is possible to combine an act and omission in one general concept,
and if so, what this overarching concept is. Eventually most jurists agreed that such a gen-
eral concept does not exist. As a result the discussion of the general principles of liability
in German textbooks is divided into two strictly separate parts, one dealing with liability
for acts and the other with liability for omissions. The advantage of such a procedure is
that the general principles are set out very logically and systematically, but the disadvan-
tage of this method is the degree of repetition of the discussion of the same concepts. To
avoid this repetition, in this book the general principles will be described as they apply to
both active and passive conduct. For this reason the word “conduct” will often be used
when referring to both an act and an omission.
2 Cf the wording of s 78(1) of the Criminal Procedure Act 51 of 1977.

51
52 CRIMINAL LAW

sense as referring to both an act and an omission – in other words, as a synonym

for “conduct”. Normally this use of the word “act” in a non-technical, non-
literal sense does not lead to confusion. From the context of the statement the
reader would normally be able to make out whether the writer uses the word
“act” loosely as a term referring to both an act of omission, or whether it is used
in the strict, technical sense of “active conduct”.
2 “Act” means “the type of act described in the definitional elements”
Criminal law does not prohibit a mere act in abstracto. Put differently, there is
no rule of law declaring “You may not act”. At every conscious moment of a
person’s existence she performs some act or other, such as walking, opening a
door, or simply sitting and staring out of the window. It stands to reason that
“act” as the word is used in criminal law does not refer to the “events” just
mentioned; it refers only to 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 does not concern itself
with any other possible “act” committed by X (ie, an act other than the one
mentioned in the definitional elements). Thus if X is charged with rape, the act
required is sexual penetration; if she is charged with arson, the act required is
setting fire to a certain type of structure.
3 The act functions as both the basis of and as a limitation of liability3 The
concept of an act performs two important functions in the construction of
criminal liability: first, it forms the basis of liability and, secondly, it serves to
limit the scope of liability.
We first consider the first-mentioned function of an act. Because the act is
the basic element in the construction of a system of criminal liability, all the
other elements or requirements for liability are attributes or qualifications of the
act. It is pointless to investigate whether there has been compliance with the
requirement of unlawfulness if it is not yet clear whether there was an act
which is compatible with the definitional elements, since only such an act can
be unlawful. Again, the discussion of culpability below will reveal that the
presence of culpability can be determined only once it is clear that there has
been an act that complies with the definitional elements and that is also unlaw-
ful. The act can therefore be seen as the base of a pyramid which may be
sketched as follows:

Culpability
(mens rea)

Unlawfulness

Compliance with definitional elements

Act

________________________

3 On this aspect of the requirement of an act, see Jescheck and Weigend 219–220; Roxin
ch 8 pars 4, 12, 58–73.
 CONDUCT 53

The second function of the requirement of an act is to determine the outer

limits of criminal liability and in this way to limit its scope. The act must be
described in such a way that it excludes from the field of investigation conduct
or events which are irrelevant for the purposes of criminal law. Such conduct or
events are:
(a) thoughts that have not yet been transformed into an act or conduct;
(b) non-human conduct, such as that of an animal; and
(c) involuntary muscular movements, such as those of a somnambulist.
Each of these will be discussed below.
4 Thoughts not punishable Merely thinking of doing something, or even a
decision to do it, is not punishable.4 Before there can be any question of crimi-
nal liability, X must have started converting her thoughts into actions. This
does not mean that only the completed crime, with all the harm already done, is
punishable. As will be seen,5 an attempt to commit a crime is also punishable,
but even then some act is required which goes beyond a mere idea or a decision
to do something. Even uttering words may be sufficient to constitute a crime, as
is evident from the fact that incitement and conspiracy are punishable.6
5 Act must be a human act The act must be a human act; in other words,
the subject of the act must be a human being. In ancient societies and during the
Middle Ages, animals and even inanimate objects, such as beams which fell on
people’s heads, were sometimes “tried” and “punished”,7 but this could not
happen today in the South African or any other modern legal system. A human
being, however, can be punished if she commits a crime through the instrumen-
tality of an animal, for example if she incites her dog to bite someone.8 In this
type of situation the law regards the animal merely as a means employed by X
to achieve her criminal purpose, and the basis of X’s liability is the same as the
basis on which she will be liable if she uses an instrument such as a stick or a
firearm. The rule that the act must be committed by a human being is subject to
the exception that a juristic person or corporate body such as a company can
sometimes also be punished. Because of the extent of this subject, the criminal
liability of a corporate body will be discussed separately later.9
6 Act not necessarily a muscular contraction It is incorrect to interpret the
concept of an “act” as necessarily implying a bodily movement or muscular
contraction. To do this is to adopt what is sometimes called the “naturalistic”
theory of an act, according to which the concept of an act is derived purely
from the natural sciences. This is an obsolete view, dating from the nineteenth
century and strongly influenced by the positivistic legal tradition then in vogue.
________________________

4 D 48 19 18: cogitationis poenam nemo patitur; D 50 16 225; Huber HR 6 1 4 (“want van

de gedachten is men alleen aan God reekenschap schuldig”); Matthaeus Prol 1 5; Moor-
man Inl 1 13; Van der Linden 2 1 3 2; Milne and Erleigh (7) 1951 1 SA 791 (A) 822; Van
der Westhuizen 1951 2 SA 338 (C) 341.
5 Infra VIII B.
6 Infra VIII C and D.
7 See Exodus 21: 28.
8 Thody 1971 2 SA 213 (N) and cf Fernandez 1966 2 SA 259 (A).
9 Infra VI.
54 CRIMINAL LAW

The obvious flaw in this theory is that it is unable to explain why omissions are
also punishable. An omission is, after all, a form of conduct in which there is,
by definition, no muscular contraction or physical movement. “Act” must
therefore be understood, not in terms of the natural sciences, but as a technical
term, peculiar to the law, which includes in its meaning both a commission and
an omission. One can, of course, sidestep the whole question as to how an “act”
can include also an omission, by simply avoiding the term “act” and using in its
stead either the expression “act or omission” or “conduct”.
As will become clear later in the discussion in this book, X’s conduct may
qualify as an act for the purposes of criminal liability even though it is not her
own physical movements that directly perform the forbidden act, but if she uses
another person as an instrument through which she performs such an act.
7 “Act” not limited to intentional conduct It is wrong to limit the concept
of an act to conduct that is willed – that is, intentional conduct. Even an unin-
tentional act may amount to an “act” for the purposes of criminal law, as where
the act takes place negligently.
If X is charged with a crime requiring intention (as opposed to negligence),
X’s will or intention is obviously of great importance when determining wheth-
er X is guilty of having committed the crime, but as a rule this intention does
not form part of the requirement of an act; it becomes an issue only in investi-
gating the later elements or requirements for liability, and more specifically the
culpability element.
8 Act must be voluntary Only voluntary conduct is punishable.10 Conduct is
voluntary if X is capable of subjecting her bodily movements to her will or
intellect. She must be capable of making a decision about her conduct (act or
omission) and to execute this decision. This implies that she must be capable of
preventing the prohibited act or result if she applies her mind to the matter. It is
not required that X make a rational or well-considered decision; even an infant
or mentally ill person can act, even though such a person cannot make a ration-
al decision. If the conduct cannot be controlled by the will, it is involuntary, as,
for example, when a sleep-walker tramples on somebody, or an epileptic moves
her hand while having an epileptic fit and hits someone’s face. If X’s conduct is
involuntary, it means that X is not the “author” or creator of the act or omis-
sion; it means that it is not X who has acted, but rather that the event or occur-
rence is something which happened to X.
9 Absolute force The voluntariness of an act is excluded, first, by absolute
force (vis absoluta).11 In this form of force X’s ability to subject her bodily
movements to her will or intellect is excluded. The following is an example of
absolute force: X is slicing an orange with her pocket-knife. Z, who is much bigger
and stronger than X, grabs X’s hand which holds the knife and presses it, with the
blade pointing downward, into Y’s chest. Y dies as a result of the knife-wound. X
with her inferior physique would have been unable to prevent the incident, even if
she had tried. X performed no act. It was Z who performed the act.
________________________

10 Goliath 1972 3 SA 1 (A) 29; Cunningham 1996 1 SACR 631 (A) 635–636; Kok 1998 1
SACR 532 (N) 545d–e; Henry 1999 1 SACR 13 (SCA) 19i.
11 Hercules 1954 3 SA 826 (A) 831G; Goliath 1972 3 SA 1 (A) 11, 29.
 CONDUCT 55

This situation must be distinguished from relative force (vis compulsiva). In

this type of force X does have the ability of subjecting her bodily movements to
her will or intellect, but is confronted with the prospect of suffering some harm
or wrong if she chooses not to commit it.12 The following is an example of
relative force: Z orders X to shoot and kill Y, and threatens to kill X herself if
she (X) refuses to comply with the order. The circumstances are such that X
cannot escape the predicament in which she finds herself. If X then shoots Y,
there is indeed an act, but X may escape liability on the ground that her conduct
is justified or excused by necessity.13 In this form of coercion X is influenced to
act in a certain manner, but it still remains possible for her to act in a manner in
which she can avoid the injurious conduct.
10 Automatism A more important respect in which the law assumes that
there is no act because what is done, is done involuntarily, is where a person
behaves in a mechanical fashion. Examples of mechanical behaviour are
reflex movements such as heart palpitations or a sneezing fit, somnambu-
lism,14 muscular movements such as an arm movement while a person is asleep
or unconscious15 or having a nightmare, an epileptic fit,16 and the so-called
“black-out”.17 Mere amnesia after the act, that is, the inability to remember
what happened at the critical moment is not to be equated to automatism,
because the question is not what X can remember of the events, but whether she
acted voluntarily at the critical moment.18
These types of behaviour are often somewhat loosely referred to as cases of
“automatism”, since the muscular movements are more reminiscent of the
mechanical behaviour of an automaton than of the responsible conduct of a
human being whose bodily movements are subject to the control of her will.19 It
really does not matter much in what terms the conduct is described; the ques-
tion is simply whether it was voluntary, in other words, whether the person
concerned was capable of subjecting her bodily movements or her behaviour to
the control of her will.
11 Distinction between automatism due to involuntary conduct and un-
conscious behaviour attributable to mental illness A distinction must be
drawn between automatism due to involuntary conduct and unconscious behav-
iour attributable to mental illness. In the former type of situation X, who is
________________________

12 As in Goliath supra and Peterson 1980 1 SA 938 (A).

13 Infra IV C.
14 Van der Linden 2 1 6 4; Moorman Inl 2 24; Johnson supra 204.
15 Dhlamini 1955 1 SA 120 (T); Naidoo 1971 3 SA 605 (N) 607E.
16 Schoonwinkel 1953 3 SA 136 (C), but contrast Victor 1943 TPD 77.
17 Van Rensburg 1987 3 SA 35 (T) (automatism due to X’s suffering from hypoglycaemia);
Viljoen 1992 1 SACR 601 (T). See also Stellmacher 1983 2 SA 181 (SWA) 185A–B.
Although X was quite rightly acquitted in this case, the court erred in regarding his hypo-
glycaemia and/or epileptic state as a factor excluding criminal capacity. See 187A, 188B.
On the defence of automatism in general, see Johnson 1969 1 SA 201 (A) 204–205;
Trickett 1973 3 SA 526 (T); s 2.01(2).
18 Piccione 1967 2 SA 334 (N); Majola 2001 1 SACR 337 (N) 339–340; Humphreys 2013 2
SACR 1 (SCA) par 10-11. On the effect of amnesia on criminal liability generally, see
Hoctor 2000 SACJ 273.
19 Humphreys 2013 2 SACR 1 (SCA) par 8.
56 CRIMINAL LAW

mentally sane, only momentarily behaves involuntarily because of, for example,
an epileptic fit, as explained above. In the latter type of situation X’s unconscious
conduct is attributable to a mental pathology, that is, mental illness (insanity).
In the past the courts have referred to the former type of situation as “sane
automatism” and to the latter as “insane automatism”. This terminology can
lead to confusion, since the defence known as “insane automatism” is in fact
nothing other than the defence of mental illness (insanity).20 This confusing
terminology originated at a time when the concept “criminal capacity” was still
unknown in our law. In the interests of clarity it is better to avoid using the
expressions “sane automatism” and “insane automatism”, and to reserve the
term “automatism” to involuntary conduct not attributable to a mental disease.
It is noteworthy that the Supreme Court of Appeal has recently on more than
one occasion21 avoided the terms “sane automatism” and “insane automatism”,
preferring to use the expression “automatism not attributable to mental pathol-
ogy” instead of “sane automatism”. (By “mental pathology” is meant “mental
illness”.) In Henry 22 the court also used the expression “psychogenic automa-
tism” to refer to “sane automatism” (ie, automatism excluding voluntary con-
duct). What in the past was referred to as “insane automatism” can better be
described as “pathological loss of consciousness”. The crucial difference to be
drawn is between loss of consciousness due to mental illness and loss of con-
sciousness due to involuntary conduct.
12 Practical importance of above distinction The difference between auto-
matism due to involuntary conduct and unconscious behaviour attributable to
mental illness is of great practical importance, for two reasons:
1 The placing of the onus of proof depends upon the defence which X raises.
In cases of automatism due to involuntary conduct the onus is on the state
to prove that the act was voluntary,23 although the state is assisted by the nat-
ural inference that, in the absence of exceptional circumstances, sane per-
sons who engage in conduct which would ordinarily give rise to criminal
liability do so consciously and voluntarily.24 In cases of unconscious be-
haviour attributable to mental illness the defence is one of mental illness
and the onus is on X to prove that she suffered from mental illness.25
2 The order which the court must make if it upholds X’s defence, depends
upon the defence which X successfully raises. A successful defence of
automatism due to involuntary conduct results in X’s leaving the court a
free person. If X relies on unconscious behaviour attributable to mental

________________________

20 In Kok 2001 2 SACR 106 (SCA) the Supreme Court of Appeal emphasised at 110d–e that
s 78(6) of the Criminal Procedure Act 51 of 1977 contains no reference to “sane automa-
tism”, and that the latter term is not a psychiatric term, but merely a useful tag to describe
automatism arising from some cause other than mental illness.
21 Cunningham 1996 1 SACR 631 (A) 635–636; Henry 1999 1 SACR 13 (SCA) 19–20.
22 Supra 20e–f.
23 Kok 1998 1 SACR 532 (N) 545; Henry 1999 1 SACR 13 (SCA) 19i–j; Humphreys 2013
2 SACR 1 (SCA) par 9
24 Kok supra 545d–f; Cunningham supra 635j–636b; Henry supra 20a–c; Humphreys supra
par 9.
25 Infra V B (iii) 9.
 CONDUCT 57

illness and her defence succeeds, she must be dealt with in accordance with
the rules relating to the defence of mental illness: section 78(6) of the
Criminal Procedure Act provides that in such a case a court must find X not
guilty but that the court then has a discretion to order that X be detained in
a psychiatric hospital, in which case X does not leave the court as a free
person.26
13 Proving automatism due to involuntary conduct The attitude of the
court towards a defence of automatism is usually one of great circumspection.27
An accused who has no other defence is likely to resort to this one in a last
attempt to try and escape the consequences of her acts. Evidence of a mere loss
of temper is insufficient to warrant an inference of automatic behaviour. Even
where “sane automatism” is pleaded and the onus is on the state, X must base
her defence on medical or other expert evidence which is sufficient to create a
doubt as to whether the action was voluntary.28
It may sometimes be difficult to decide whether X’s unconscious or “auto-
matic” behaviour stems from mental illness or not. Expert evidence of a psy-
chiatric nature will be of much assistance to the court in pointing to factors
which may be consistent, or inconsistent, as the case may be, with involuntary
conduct which is non-pathological (ie, unrelated to a mental illness). Such
evidence may, for example, relate to such matters as the nature of the emotional
stimulus which allegedly served as a trigger mechanism for the condition.29
The mere subconscious repression of an unacceptable memory (sometimes
described as “psychogenic amnesia”) does not mean that X in fact acted invol-
untarily.30 It is well known in psychology that if a person experiences a very
traumatic event, recalling the event in the mind may be so unpleasant that the
person’s subconscious “blocks”, as it were, subsequent recollection of the
event. This then results in such person being subsequently unable to recollect
what happened. This inability to remember is not the same as the inability to
subject a person’s bodily movements to her will or intellect. It is the latter
inability which is the crux of the test to determine whether the defence of
automatism not attributable to mental illness should succeed or not. What a
court must determine when X relies on the defence of such automatism is
therefore not X’s ability to remember what happened when the alleged crime
was committed, but whether at the crucial moment she had the ability to subject
her bodily movements to her will or intellect.
14 Antecedent liability The following qualification of the rule that muscular
or bodily movements performed in a condition of automatism do not result in
criminal liability should be noted: if X, knowing that she suffers epileptic fits or
that, because of some illness or infirmity she may suffer a “black-out”, neverthe-
less proceeds to drive a motor car, hoping that she will not suffer a fit or “black-
out” while she is behind the steering wheel, but does, she cannot rely on the
________________________

26 Infra V B (iii) 10.

27 Potgieter 1994 1 SACR 61 (A) 72–74; Henry 1999 1 SACR 13 (SCA) 20c; Humpheys
supra par 10.
28 Cunningham supra 635; Henry supra 20; Humphreys supra par 10
29 Henry supra 20–21.
30 Henry supra 20g–i.
58 CRIMINAL LAW

defence of automatism. In these circumstances she can be held criminally liable

for certain crimes which require culpability in the form of negligence, such as
negligent driving or culpable homicide. Her voluntary act is performed when she
starts to drive the car while still conscious.31 In this way she sets in motion a
causal chain of events which culminates in the harmful and unlawful result. At
the moment she commenced driving the car she was in a position to choose not to
do so. This situation is sometimes referred to as “antecedent liability”.

B OMISSIONS
1 Introduction It is not only a positive act which may lead to criminal
liability; an omission to act may also do so. In the first instance one has to do
with active conduct or a commissio, and in the second with failure to act or
omissio. The relationship between the concepts “act”, “omission” and “con-
duct” has already been discussed above.32
2 Prohibitive and imperative norms The distinction between commissiones
and omissiones relates to the division of the norms of criminal law into two
groups, namely prohibitive and imperative norms. Prohibitive norms (“Don’t
do that!”) prohibit persons from performing certain acts. Imperative norms
(“Do that!”), on the other hand, command persons to engage in certain active
conduct; they therefore prohibit persons from omitting to act positively.
The vast majority of criminal-law norms are prohibitive norms. Only in ex-
ceptional cases does the law command a person to engage in active conduct.
The reason for this is, firstly, that as far as possible, the law does not concern
itself with people who simply do nothing; secondly, that the law does not im-
pose a general obligation upon people at all times to race to the rescue of others
and to protect them from harm;33 and thirdly, that imperative norms constitute a
greater infringement upon a person’s freedom than prohibitive norms, since
imperative norms place a duty upon her in certain circumstances to engage in
active conduct whereas prohibitive norms merely exclude certain possible
forms of conduct from the otherwise unlimited scope of conduct in which she is
allowed to engage.
Imperative norms can only be infringed through an omission. Prohibitive
norms, on the other hand, can be infringed through either active conduct (com-
missio) or an omission (omissio). For example, the prohibitive norm which
reads “you may not kill” may be infringed through either an act or an omission.
An example of the infringement of this norm by means of an omission is where
a mother causes her baby to die by simply omitting to feed it.
3 Legal duty to act positively An omission is punishable only if there is a
legal duty upon somebody to perform a certain type of active conduct. A moral
duty is not necessarily the same as a legal duty. Therefore, for the purposes of

________________________

31 Shevill 1964 4 SA 51 (RA) (driver of motor car fell asleep); Trickett 1973 3 SA 526 (T)
532; Grobler 1974 2 SA 663 (T) (crane operator fell asleep); Van Rensburg 1987 3 SA
35 (T) 39C–D.
32 Supra II A 1.
33 Burchell Huldigingsbundel vir C R Snyman 10-13.
 CONDUCT 59

the law “an omission” does not mean “to do nothing”, but rather “to omit to
engage in active conduct in circumstances in which there is a legal duty to act
positively”. Only then can X’s conduct (ie, her omission) be said to accord with
the definitional elements of the relevant crime.
If the legal duty is not created expressly (eg in legislation) the rule is that
there is a legal duty on X to act positively if the legal convictions of the com-
munity demand that there be such a duty.34 To ascertain what the legal convic-
tions of the community are, the values enshrined in the Bill of Rights in the
Constitution must be taken into consideration.35
4 Legal duty: particular situations It is customary, in discussions about the
question of when an omission leads to criminal liability, to enumerate a number
of situations in which there is a legal duty on X to act positively. Such a list
will also be supplied below. In the first three instances mentioned below the
legal duty has been created expressly. In these situations it is not necessary to
consider the legal convictions of society in order to ascertain whether or not
there is a legal duty. However, the legal convictions of society play an import-
ant role in the instances mentioned thereafter.
There is not a closed list of situations in which a legal duty exists. Most situ-
ations described in the list below should rather be viewed as instances en-
countered relatively often in practice and which have crystallised into easily
recognisable applications of the general rule, mentioned above, that there is a
legal duty to act positively if the legal convictions of the community require
that there be such a duty. The situations enumerated in this list cannot be separ-
ated into watertight compartments; they may overlap.
(1) A statute may place a duty on somebody to act positively,36 for example, to
complete an annual income-tax form, or not to leave the scene of a car
accident but to render assistance to the injured and report the accident to
the police.37
(2) A legal duty may arise by virtue of the provisions of the common law.
According to the provisions of the common law dealing with the crime of
high treason, a duty is imposed on every person who owes allegiance to the
state and who discovers that an act of high treason is being committed or
planned, to disclose this fact to the police as soon as possible. The mere
(intentional) omission to do this is equivalent to an act of high treason.38
(3) A legal duty may arise by virtue of an order of court, as in the following
example: husband X and his wife Y are granted a divorce, and the court
which grants the divorce orders X to pay maintenance to Y in order to sup-
port her and the children born of the marriage. If X omits to pay the main-
tenance, he may be convicted of the crime of contempt of court.

________________________

34 Minister van Polisie v Ewels 1975 3 SA 590 (A) 797A–B; Mahlangu 1995 2 SACR 425
(T) 435, especially 435j–436a; Williams 1998 2 SACR 191 (SCA) 194a–b. (Contrast,
however, Minister of Law and Order v Kadir 1995 1 SA 303 (A).)
35 Carmichele v Minister of Safety and Security 2002 1 SACR 79 (CC).
36 Burchell Huldigingsbundel vir C R Snyman 15 ff.
37 S 61 of the National Road Traffic Act 93 of 1996.
38 Banda 1990 3 SA 466 (B) 512A–B; infra IX A 6(b).
60 CRIMINAL LAW

(4) A duty may arise from agreement. In Pitwood,39 an English case, the facts
were that X and a railway concern had agreed that, for remuneration, X
would close a gate every time a train went over a crossing. On one occa-
sion he omitted to do so and in this way caused an accident for which he
was held liable.
(5) A duty may arise where a person accepts responsibility for the control of a
dangerous or a potentially dangerous object, and then fails to control it
properly. In Fernandez,40 for example, X kept a baboon and failed to repair
its cage properly, with the result that the animal escaped and bit a child,
who later died. X was convicted of culpable homicide.41
(6) A duty may arise where a person stands in a protective relationship to-
wards somebody else. For example, a parent or guardian has a duty to feed
a child.42 A protective relationship may also exist where somebody accepts
responsibility for the safety of other people, such as where X is the leader
of a mountain-climbing expedition, or someone looking after a baby, or a
life-saver at a swimming pool or beach.
(7) A duty may arise from a previous positive act, as where X lights a fire in an
area where there is dry grass, and then walks away without putting out the
fire to prevent it from spreading. This type of case is sometimes referred to
as an omissio per commissionem, since the omission follows upon a
commission or positive act which has created a duty to act positively.43
(8) A duty may sometimes arise by virtue of the fact that a person is the in-
cumbent of a certain office, such as a medical practitioner or a police offi-
cial. In Minister van Polisie v Ewels 44 it was held that a policeman on duty
who witnesses an assault has a duty to come to the assistance of the person
being assaulted.
5 Omissions must be voluntary; the defence of impossibility Like active
conduct, X’s omission must be voluntary in order to result in criminal liability.
Only then can the omission lead to criminal liability. An omission is voluntary
________________________

39 (1902) 19 TLR 37.

40 1966 2 SA 259 (A).
41 See also Russell 1967 3 SA 739 (N) (operating a crane under a live electric wire);
Claasen 1979 4 SA 460 (ZS) 465 (X allowed a teenage girl, who did not have even a
learner’s licence, to drive his large motor car while he was talking to another passenger in
it. As a result of his omission properly to exercise control over the girl’s driving, he col-
lided with a cyclist, killing him. X was convicted of culpable homicide).
42 Chenjere 1960 1 SA 473 (FC); B 1994 2 SACR 237 (E) 248.
43 Russell supra 743H; Claasen supra 465; Van Aardt 2009 1 SACR 648 (SCA) par 41-42.
44 1975 3 SA 590 (A). See also Govender 2004 2 SACR 389 (SCA) 389c-d; F v Minister of
Safety and Security 2009 2 SACR 639 (C) par 47,48. See also the applications of the Ewels
case in Gaba 1981 3 SA 745 (O) and A 1991 2 SACR 257 (N) 272–273. In Mahlangu 1995
2 SACR 425 (T) 434–436 at least one of the judges (MJ Strydom J) who heard the appeal,
was (obiter – see 434g) of the opinion that there was a legal duty on X, an employee at a
filling station, to inform his employer Y, who was also the owner of the filling station, that
he (X) knew that the filling station would be robbed, and that X’s omission thus to inform Y
constituted a ground for convicting X of being an accomplice to the robbery which in fact
ensued. MJ Strydom J based the existence of the legal duty upon the fact that X was an
employee of Y (whose filling station was robbed) and that there was accordingly a re-
lation of trust between X and Y.
 CONDUCT 61

if it is possible for X to perform the positive act. After all, the law cannot
expect somebody who is lame to come to the aid of a drowning person, or
somebody who is bound in chains to extinguish a fire.
If X is summoned to appear as a witness at the same time on the same day in
both Pretoria and Cape Town, it is impossible for her to be present at both
places simultaneously. When charged with contempt of court because of her
failure to appear at one of these places, she may plead impossibility as a defence.
In short, the objective impossibility of discharging a legal duty is always a
defence when the form of conduct with which X is charged is an omission. The
notion that the law cannot expect somebody to do the impossible is usually
expressed by the maxim lex non cogit ad impossibilia, which means “the law
does not apply to that which is impossible”.
The requirements for the defence of impossibility are as follows:45
(a) The defence is available only if the legal provision which is infringed
places a positive duty on X, that is, if the rule which is transgressed amounts to
the law demanding from its subjects: “Do this!” or “You must!” Put differently,
the defence is applicable only if the prosecution alleges that X failed to do
something – in other words, if X is charged with an omission. The defence
cannot be raised if the legal rule which X has allegedly infringed amounts to
the law demanding of its subjects: “Don’t do this!” or “You may not!” Put dif-
ferently, the defence cannot be raised if X is charged with a commission (active
conduct).46 The reason for this is that the law, from a policy point of view,
wants to confine the defence within the closest possible limits. Where there is a
simple prohibition (“Don’t do this!” – in other words if X is charged with a
commissio) X must merely refrain from committing the prohibited act, which
she is not compelled to do. She should therefore not be allowed to plead that it
was impossible for her not to commit the act.
This defence may, for example, be pleaded successfully where a legal pro-
vision places a positive duty on someone to attend a meeting,47 or to report for
military duty, or to affix a revenue stamp to a receipt.48 It cannot, however, be
pleaded successfully where a provision prohibits a person from driving a car
without a driver’s licence,49 or from catching fish of a certain size,50 or from
entering a certain area.51 The law compels nobody to drive a car, to catch fish
or to enter a certain area. In this category of cases X might, however, if circum-
stances warrant it, rely on necessity as a defence, as where she drives a car
without a driver’s licence in order to obtain urgently needed medical aid for a
seriously injured person. Here her unlawful act is justified because she infringes
a relatively minor interest in order to protect a relatively major interest, not
because it is impossible for her not to drive a car.
________________________

45 On the defence of impossibility in general, see Van Oosten 1986 THRHR 375; Ellis 1986
De Jure 393.
46 Canestra 1951 2 SA 317 (A) 324; Leeuw 1975 1 SA 439 (O) 440.
47 Jetha 1929 NPD 91.
48 Mostert 1915 CPD 266; De Jager 1917 CPD 558.
49 Leeuw supra. Cf also Adcock 1948 2 SA 818 (C) 822.
50 Canestra 1951 2 SA 317 (A) 324.
51 Contra Mafu 1966 2 SA 240 (E). In this case X’s defence should rather have been
regarded as one of necessity.
62 CRIMINAL LAW

The result of this requirement is that the defence of impossibility can be

pleaded only if the conduct which forms the basis of the charge consists in an
omission. This means that this defence is rarely invoked in our law. Compara-
tively few positive duties are imposed by common law.
(b) It must be objectively and physically impossible for X to comply with the
relevant legal provision.52 It must be impossible for any person placed in X’s
position to comply with the law. It must also be absolutely (and not merely
relatively) impossible to comply with the law: if X is imprisoned for a certain
period, she cannot invoke impossibility as a defence if she is charged with
failure to pay her tax, if it is possible for her to arrange that somebody else will
pay it on her behalf.53 The mere fact that compliance with the law is exception-
ally inconvenient for X or requires a particular effort on her part does not mean
that it is impossible for her to comply with the law.54
(c) There is authority for the proposition that X cannot rely on impossibility if
she herself is responsible for the circumstances in which she finds herself.55 It is
submitted that it is preferable to separate the act which brings about the situa-
tion of impossibility from the failure to comply with the law. To project the
reprehensibility of the former onto the latter is reminiscent of an application of
the discarded doctrine of versari in re illicita (the “taint doctrine”).56 If the first
act amounts to a crime, X may be convicted of and punished for it separately.
If, however, X foresees that, by committing a certain act, she will find herself
in a situation in which it will be impossible for her to comply with a legal duty,
the picture changes: she ought then not to be allowed to rely on impossibility.

C POSSESSION57
1 Introduction Several important statutory provisions criminalise the pos-
session of certain articles, such as unlicensed firearms,58 drugs59 or child porn-
ography.60 There are certain general rules governing the meaning of the concept
of “possession”. These rules are set out in the discussion which follows. The
phenomenon of crimes prohibiting the possession of certain articles is found
only in crimes created by statute, not in common-law crimes.61
________________________

52 Leeuw supra 440; Moeng 1977 3 SA 986 (O) 991.

53 Hoko 1941 SR 211 212.
54 Attorney-General v Grieve 1934 TPD 187; Leeuw supra 440.
55 Close Settlement Corporation 1922 AD 294 300.
56 On this doctrine, see infra V A 8.
57 See generally Snyman 2007 THRHR 540; 2008 THRHR 13; Hugo 1974 THRHR 148;
295; LAWSA 6 pars 391–399; Whiting 1971 SALJ 296; Middleton 1974 THRHR 183.
58 S 3 of the Firearms Control Act 60 of 2000; infra XIII D.
59 S 4 of the Drugs and Drugs Trafficking Act 140 of 1992; infra XII C.
60 S 27 of the Films and Publications Act 65 of 1996, held to be constitutional in De Reuck
v DPP 2003 2 SACR 445 (CC).
61 The question may arise whether the common-law crime of receiving stolen goods know-
ing the goods to be stolen is not perhaps an example of a common-law crime in which the
possession of certain articles is prohibited. It is submitted that the answer to this question
is negative. The act prohibited in this crime is not the possession of stolen goods, but the
receiving of such goods. There is, however, a close link between the receiving and the
possession of the goods. See infra XVIII D 6.
 CONDUCT 63

In crimes criminalising the possession of an article, “possession” refers to the

particular act or conduct required for a conviction. From a dogmatic point of
view it is difficult to categorise possession as either a positive act (commissio)
or an omission (omissio). Possession may sometimes be proven by a positive
act on the part of X, as where she physically handles the article by locking it up
in a drawer. It may also be proven by an omission on the part of X, as where
she is informed that another person has placed a packet containing drugs in the
drawer of a desk over which she has control, and she simply acquiesces in the
situation and does nothing further to terminate her control over the packet.
Possession could indeed be described as a “state of affairs”.
2 The two elements of possession – corpus and animus Possession consists
of two elements, namely a physical and a mental. The physical element is object-
ive in nature. It is referred to as corpus or detentio, and entails the physical
control over the article. The second element is subjective in nature. It is referred
to as animus, and describes the intention with which X exercises control over
the article. Before X can be said to possess an article, both corpus and animus
must be present, and they must be present simultaneously. The contents of the
animus is not the same in each crime of possession; it may vary from crime to
crime, depending on how wide or narrow the legislature, when creating the
crime, intends the concept of possession to be in that particular crime.
3 The two forms of possession – possessio civilis and possessio naturalis
The law differentiates between two forms of possession, namely possessio
civilis and possessio naturalis. The difference between these two forms of
possession is not found in the physical element, that is, the way in which X
exercises control over the article, but in the animus element, that is, the particu-
lar intention with which X exercises control over the article.

Possession

possessio civilis OR possessio naturalis

mental
physical mental physical
element:
element: + element: element: + usually
detentio animus detentio
animus
or control domini or control
detentionis

Possessio civilis is also known as “juridical possession” or “legal possession”.

In this form of possession X’s animus takes the form of animus domini, that is,
the intention to exercise control over the article as an owner or in the belief that
she is the owner. Possessio civilis is the narrow form of possession. If a statute
creating a crime of possession is interpreted as requiring possessio civilis, fewer
64 CRIMINAL LAW

people qualify as possessors compared to where the statute is interpreted as

creating possessio naturalis.
Possessio naturalis is known as “natural possession”. In this form of posses-
sion X exercises control over the article without intending to possess it as owner.
X knows that somebody else (Y) is the owner, but nevertheless exercises con-
trol over the article on behalf of Y. This form of possession is the wider form of
possession. If a statute creating a crime of possession is interpreted as requiring
possessio naturalis, a wider circle of people qualify as possessors compared to
the situation where the statute is interpreted as creating possessio civilis.
In most statutory provisions criminalising the possession of a certain type of
article, the courts interpret the criminalising provision in such a way that the
legislature is deemed to have intended mere possessio naturalis to be punish-
able. The courts are generally unwilling to hold that the legislature intended the
prohibited possession to take the form of possessio civilis, because such an
interpretation would place a difficult onus of proof upon the prosecution: the
prosecution would then have to prove that X intended to exercise control over
the article animo domini (in the belief that she was the owner). Since X’s
specific intention is known to herself only, it is difficult for the prosecution to
prove X’s specific intention to control the article not on behalf of another, but
in the belief that she herself was the owner.62
4 The physical element (corpus) The physical element of possession refers
to X’s exercising of control over the article. Whether somebody has the control
over an article is a question of fact, depending on the circumstances of each
case. Whether X exercises control over an article depends on considerations
such as the nature and size of the article, its purpose and function, and generally
the way in which one usually handles the particular type of article. If, for
example, X is the only person who has a key to a room or safe, she is usually
regarded as exercising control over the contents of the room or safe.63
In order to exercise control, X need not necessarily touch or handle the article
herself. She may exercise control through the instrumentality of somebody else,
such as a servant or employee.
X may further exercise control over an article despite the fact that the article
is not in her immediate presence. If, for example, X is the owner of a delivery
vehicle driven by Y, her employee, and X can communicate with Y by cell
phone and in such a way give Y instructions regarding what to do with contain-
ers in the vehicle, X exercises control over the containers and the vehicle even
though the vehicle is a thousand kilometres away from her.64
Two people who have opposing claims to an article cannot exercise control
over it simultaneously.65 The one’s possession excludes that of the other. How-
ever, it is possible for two or more people who do not have opposing claims to
________________________

62 R 1971 3 SA 798 (T) 802C–D; Solomon v Visser 1972 2 SA 327 (C) 339.
63 Shaw v Hendry 1927 CPD 357.
64 Singiswa 1981 4 SA 403 (C). In this case X was a prisoner on Robben Island, and was
convicted of possession of dagga, despite the fact that the dagga was far away from X in
Guguletu, a suburb of Cape Town.
65 Singiswa supra 405F–G; Nddlovu 1982 2 SA 202 (T) 204F–G.
 CONDUCT 65

the article, to exercise control over the article simultaneously and therefore to
possess it jointly.66 Control over an article by two or more people is possible if
X exercises the control through an agent or servant Y, provided, of course, that
Y also has knowledge of the contents of the article.
5 The animus element
(a) General
In the definitions of the different crimes in which the possession of a certain
type of article is criminalised, “possession” does not always bear the same
meaning. The different meanings of “possession” in different crimes of posses-
sion do not flow from any differences in the meaning of the corpus element
(control over the article), but in different meanings attached to the animus or
mental element of the possession.
Different Latin expressions are used to describe the contents of the animus
element. The use of these expressions by courts and writers is not always con-
sistent, and this sometimes leads to unnecessary confusion concerning the
meaning of possession in the particular crime. The different Latin expressions
used to describe the animus requirement will now be considered.
(b) Animus tenendi and animus detentionis
Animus tenendi means the intention to keep the article. Animus detentionis
means the intention to exercise control (detentio) over it. These two expressions
essentially mean the same and may be used as synonyms. It is not possible to
intend to hold the article without intending to exercise control over it. This
animus is always required to establish possession. It is the minimum require-
ment for proof of the animus. Without the existence of this animus there can be
no possession.
This requirement in reality encompasses two subrequirements: Firstly, X must
have knowledge of the existence of the article in her control. This implies
knowledge by X of the essential identity or character of the article. Secondly, X
must be aware of the fact that she is exercising control over it.67 Put more con-
cisely, X must know, first, what it is that she has in her control, and secondly,
that she is exercising control over it.68 The courts sometimes refer to this
requirement by stating that there must be “witting possession”.69 If an article is
placed in the hands of somebody who is sleeping, the latter cannot be said to
“possess” the article. If Y places a prohibited article in the drawer of X’s desk
while X is out of her office and accordingly unaware of the presence of the
article in her desk drawer, X can similarly not be said to exercise control over
the article and thus to possess it.
In most of the crimes in which the legislature criminalises the possession of a
certain type of article, the legislature intends the animus required for a conviction
________________________

66 Masilo 1963 4 SA 918 (T) (X, the driver of a motor-car, picked up passenger Y, while
knowing that Y was in possession of dagga. The court held that both X and Y possessed
the dagga); Hoosain 1990 2 SA 1 (A) 11A–B; Mayekiso 1990 2 SACR 38 (NC) 43a.
67 Moyage 1958 3 SA 400 (A) 409C–D; Blauw 1972 3 SA 83 (C) 84D; Mofokeng 1973 1
SA 89 (O) 91E–F; Skhosana 1973 1 SA 322 (O) 325A; Jacobs 1989 1 SA 652 (A) 656C,
659D–H; Whiting 1971 SALJ 296 297.
68 Mosoinyane 1998 1 SACR 583 (T) 592c.
69 Brick 1973 2 SA 571 (A) 580B–C; Cleminshaw 1981 3 SA 685 (C) 690D–E.
66 CRIMINAL LAW

to consist of animus tenendi or animus detentionis, as explained above. The

possession is then known as possessio naturalis, as opposed to possessio civilis.
(c) Animus domini
Animus domini means knowledge or belief by X that she is the owner (domi-
nus) of the article. The legislature may create a crime of possession and intend
the possession not to have the wide meaning of possessio naturalis (where the
animus consists of animus tenendi), but to have the more restricted meaning of
possessio civilis. In such a case the animus required for a conviction is not
merely an animus tenendi, but also an animus domini. X must then exercise
control over the article as an owner, or in the belief that she is the owner. It is
then not sufficient for a conviction that X exercises control over the article on
behalf of somebody else. Merely to exercise control as an agent, servant,
messenger or bailee, is then not sufficient. A well-known example in the
common law of a possessor who possesses with animus domini is the bona fide
possessor. She is somebody who is not the real owner, but who bona fide
believes that she is the owner.
(d ) Animus tenendi with or without the intention to derive a benefit from the
article
The animus required for possession is sometimes expressed as animus ex re
commodum acquirendi – that is, the intention to derive some benefit from the
possession of the article. Examples of such possessors are lessees, pledgees,
persons who have an article on loan and people who have the right of retention
of the article.
A further possibility is that X may exercise control over the article without
any motive to derive a benefit, as where she takes care of the article at the
owner’s request simply as a favour, that is, from purely altruistic motives. X’s
animus may then be described as animus non sibi sed alteri possidendi – that is,
the intention to possess the article not for one’s own benefit, but for somebody
else’s benefit.
People who possess an article with one of the two intentions described in the
above two paragraphs, do not possess animo domini, because they know that
somebody else is the owner. They have only the animus tenendi.70 It is submit-
ted that the animi described in the above two paragraphs should play no role in
criminal law. The meaning of these animi should be restricted to private law.
The difference between animus tenendi with intent to derive a benefit and such
animus without an intent to derive a benefit relates to X’s motive only, and X’s
motive is, as far as the determination of criminal liability is concerned, irrele-
vant.71
(e) Animus rem sibi habendi
Another expression sometimes used in legal literature is animus rem sibi
habendi.72 This expression means “the intention to keep the article for your-
self ”. It is a confusing expression because it may refer to either the intention of
________________________

70 Ndwalane 1995 2 SACR 697 (A) 702c–d.

71 Infra V C 12.
72 R 1971 3 SA 798 (T) 801D–F; Brick 1973 2 SA 571 (A) 582H.
 CONDUCT 67

the possessor civilis or that of the possessor naturalis. The possessor civilis
always has this intention, but the thief, who knows that somebody else is the
owner and therefore cannot have the animus domini, also has the animus rem
sibi habendi. In order to avoid confusion, this expression should not be used in
criminal law.
( f ) Animus possidendi
The Latin expression most often used to describe the animus element of pos-
session is animus possidendi. Literally it means only the “intention to possess”.
This expression, or at least its literal meaning, says nothing about the important
question of what the contents of X’s intention must be in order to lead to a
conviction of possession.
An analysis of the use of this expression by both courts and writers reveals
that courts and writers do not always attach the same meaning to this often-used
expression.
• Firstly, it is sometimes used merely as a synonym for the animus require-
ment in general.73 It is then nothing else than a neutral term referring to “the
mental element of possession”.
• Secondly, it is sometimes used to refer to awareness by X that she is in
possession of the article – in other words, to “witting possession”.74
• Thirdly, it is sometimes used to refer to the animus tenendi (or, what is the
same, the animus detentionis) – that is, the intention to exercise control, ir-
respective of whether X is aware or unaware of the fact that somebody else
is the owner, and irrespective of whether X’s motive is to benefit herself or
another.75
• Fourthly, it is sometimes used as a synonym for animus domini.76
• Fifthly, it is sometimes used as a synonym for the intention to derive a
benefit from the possession of the article.77
The general impression one gets from an analysis of the use of this expression
by the courts is that it is merely employed as a synonym for the animus element
in general. It is submitted that, in order to avoid confusion, it is advisable to
avoid the use of this expression as far as possible. If one merely speaks of the
“animus requirement” or the “mental element of possession”, one can avoid
confusion. The most important reason for the confusion concerning the contents
of the mental element of possession is the courts’ and writers’ predilection for
the use of Latin expressions to refer to this element. (Presumably this creates
the impression of erudition.) Much, if not most, of the confusion can be avoid-
ed by describing the contents of this element not in Latin, but in plain English
(or another language used in legal literature in South Africa, such as Afri-
kaans).
________________________

73 Nabo 1968 4 SA 699 (EC) 400F; Mbulawa 1969 1 SA 532 (EC) 535D; Cleminshaw 1981
3 SA 685 (C) 690D–E; Quinta 1984 3 SA 334 (C) 338A; Mello 1998 1 SACR 267 (T) 272c.
74 Gumbi 1927 TPD 660 662; Gentle 1983 3 SA 45 (N) 46H; Cleminshaw supra 690.
75 Kasamula 1945 TPD 252 356–357; Nabo 1968 4 SA 699 (EC) 700H; R 1971 3 SA 798
(T) 803F–G; Quinta 1984 3 SA 334 (C) 338A.
76 Pule 1960 2 SA 668 (T) 669C; R supra 801A, 801C–E; Ndwalane 1995 2 SACR 697 (A)
702c.
77 Kasamula 1945 TPD 252 257; Binns 1961 2 SA 104 (T) 107G.
68 CRIMINAL LAW

(g) Joint possession

Just as more than one person may have the physical control of an article,
more than one person may also simultaneously have the mental element re-
quired for possession. More than one person may, for example, simultaneously
(illegally) possess a firearm (which is a crime which does not require animus
domini but only animus detentionis).78 If they have the common purpose to
commit a robbery but only one of them has the detention of the firearm, the
mere fact that they have a common purpose to commit a robbery does not
necessarily mean that all of them possess that firearm. Such a deduction can
only be made if the court finds that the robber who had the detention intended
to possess it not only for himself but also on behalf of the other(s), and that the
other(s) had the intention that the robber having the detention should exercise
the physical detention on their behalf. Such a finding cannot automatically be
made from the mere fact that the participants acted with a common purpose to
rob, because such common purpose may equally exist in a situation in which
the robber having the detention of the firearm intends to possess it only for
himself.79
(h) Animus element does not form part of culpability (mens rea)
In crimes criminalising the possession of certain types of articles, the animus
element of possession does not form part of the culpability requirement (mens
rea) of the crime, but of the wrongdoing (actus reus).80 Even if the crime is one
that requires culpability in the form of intention, the animus element of posses-
sion forms part of the description of the act required for a conviction, and not of
culpability. The fact that the animus invariably has a subjective character does
not mean that it therefore forms part of the culpability requirement, because it
is wrong to regard – as do the adherents of the psychological concept of culpa-
bility – all subjective requirements for liability as necessarily incorporated into
the culpability requirement.81
In Jacobs,82 a case which dealt specifically with the unlawful possession of a
certain article, the Appeal Court expressly held that the animus element of
________________________

78 Infra XIII D 2 (c).

79 Nkosi 1998 1 SACR 284 (W); Motsema 2012 2 SACR 96 (SGJ). In Kwanda 2013 1
SACR 137 (SCA) X was the driver of a vehicle. Y sat next to him with an AK47 rifle. On
a charge of unlawfully possessing a firearm, the court held that, even assuming that X
knew that Y possessed the AK47, he (X) was not guilty of (jointly) possessing the fire-
arm, because it was not proven that he intended to possess it jointly. It is difficult to agree
with the court’s finding: it is difficult to believe that X, who drove the car in the
knowledge that Y possessed the firearm, did not in any way commit an act whereby he at
the very least jointly exercised control of the firearm. For just criticism of this judgment,
see Jordaan 2013 SACJ 93.
80 For an explanation of the meaning of wrongdoing and culpability, see supra I E 2–3;
infra IV A, especially IV A 11; V A, especially V A 2.
81 See the discussion infra V A 9–10.
82 1989 1 SA 882 (A) 656–661. It is noticeable that the Appeal Court in this case did not
follow the previous cases of Smith 1965 4 SA 166 (C), Job 1976 1 SA 207 (NC) 208;
Quinta 1984 3 SA 334 (C) 337I, 338D and Adams 1986 4 SA 882 (A) 891H–I, in which
the courts held (incorrectly, it is submitted) that the knowledge by X that the packet under
her control contained a prohibited article, forms part, not of the animus element of pos-
session, but of culpability. In Cameron 2005 2 SACR 279 (SCA) 183d the court likewise
regarded mens rea as an element separate from the mental element of possession.
 CONDUCT 69

possession does not form part of culpability, but of the act. Van Heerden JA
held that one cannot say that X possesses dagga unless she knows that the
article over which she is exercising control is in fact dagga. If X thinks that the
packet over which she is exercising control contains only tobacco, she cannot
be said to possess dagga, but only tobacco. This subjective knowledge of X
therefore relates to the act of possession, and not to culpability. Culpability is
still required, and consists in X’s awareness that she possesses the dagga un-
lawfully. The latter awareness is absent if X thinks that the possession of that type
of article is not prohibited by law,83 or if she thinks that her conduct is covered by
some ground of justification, such as coercion (necessity) or public authority.
6 The unwilling receiver of a prohibited article Assume that one day X
walks to her post box, opens it, finds an envelope addressed to herself in it,
opens the envelope, and discovers that it contains photos of child pornography,
the possession of which is a crime.84 X did not order the photos from anyone.
Some unknown person with a perverted sense of humour simply sent them to
her. Sometime thereafter the police visit her house and find the envelope
containing the photos on her dining-room table. Is she guilty of the unlawful
possession of the photos?
There are two reported decisions in which the facts were more or less similar
to those set out above. In R85 the police visited X’s house about one hour after
he had received the packet in the post. By that time he had not yet gotten rid of
the photos, neither had he contacted the police. The court held that he was not
guilty of the unlawful possession of the photos, because the relevant legislation
required X to have the intent to exercise control over the article “for his own
purpose or benefit”. A perusal of the judgment as a whole reveals that what the
court actually intended to say is that the legislature required X to hold the
articles animo domini, and that X in this case did not have such an intention.86
In Brick87 a period of 24 hours expired between the time X received the packet
and the time the police discovered it in X’s house. The Appeal Court held that
X was guilty of the possession of the article. The court refused to follow the
argument in R’s case,88 holding it to be sufficient for a conviction that there was
“witting physical detention, custody or control”.89
________________________

83 De Blom 1977 3 SA 513 (A); infra V C 23–24.

84 S 27 of the Films and Publications Act 65 of 1996, held to be constitutional in De Reuck
v DPP 2003 2 SACR 445 (CC).
85 1971 3 SA 798 (T).
86 The court’s reasoning concerning the applicable law is open to criticism. The court’s
conclusion about the law applicable to the relevant crime is incompatible with the court’s
own previous (correct) finding that “it is immaterial for the purposes of statutory posses-
sion [by which the court must have intended to mean possessio naturalis] whether the
holder intends to control the prohibited article for his own benefit or on behalf of anoth-
er” (803A). It is also incompatible with the court’s own previous statement that in statu-
tory crimes prohibiting the possession of an article, only an animus tenendi is required
(803B). Quite apart from these points of criticism, the court’s finding that X had to intend
to exercise control “for his own purpose or benefit” is ambiguous, as this expression may
cover both animus domini and animus tenendi.
87 1973 2 SA 571 (A), followed in Hanekom 1979 2 SA 1130 (A) 1135H and Adams 1986 4
SA 882 (A) 891.
88 Supra.
89 580C–D.
70 CRIMINAL LAW

It is submitted that cases such as these should not, as the courts in these cases
did, be decided with reference to any type of animus which X must have, but
with reference to the general requirement applicable to all acts and omissions,
namely that only an act or an omission which is voluntary can lead to a convic-
tion. In factual situations such as these, the requirement of voluntariness means
that the conduct of possessing the article begins only when the time during
which X might reasonably be allowed to get rid of the article, or to inform the
police about it, has elapsed. Only thereafter can her act of possessing be de-
scribed as voluntary. One must distinguish between the coming into being of the
situation in which X found herself, and its continuation. In the former instance
one cannot construe a voluntary act, but in the latter one can.90 It is submitted
that an application of this principle to the facts in the two cases discussed above
leads to conclusions which are similar to those in fact reached by the two courts.

________________________

90 Middleton 1974 THRHR 183 185–186; Whiting 1971 SALJ 296 300.
 CHAPTER
III

THE DEFINITIONAL ELEMENTS

A COMPLIANCE WITH THE DEFINITIONAL ELEMENTS1

1 Meaning of definitional elements Once it is clear that there was an act or
omission (conduct) on the part of X, the next step in the determination of crim-
inal liability is to investigate whether the conduct complied with the definitional
elements of the crime with which X is charged. In order to understand this prin-
ciple, it is necessary, first, to explain the meaning of the expression “definitional
elements”.
By “definitional elements” is understood the concise description of the re-
quirements set by the law for liability for the specific type of crime with which
X is charged, as opposed to other crimes. By “requirements” in this context is
meant not the general requirements applying to all crimes (eg voluntary con-
duct, unlawfulness and culpability), but the particular requirements applying to
a certain type of crime only.
The definitional elements contain the model or formula with the aid of which
both an ordinary person and a court may know what particular requirements
apply to a certain type of crime. By implication it also indicates in which re-
spects the particular crime with which one is dealing differs from other crimes.
One may also explain the meaning of “definitional elements” as follows: All
legal provisions creating crimes may be reduced to the following simple for-
mula: “whoever does ‘A’, commits a crime”. In this formula ‘A’ represents the
definitional elements of the particular crime.
________________________

1 See generally Snyman 1994 SALJ 65; Rabie 1986 SACC 225; Jescheck and Weigend
244 ff; Schönke-Schröder n 43 ff ad s 13; Maurach-Zipf chs 19–22; Roxin 278 ff; Fletcher
553–566; Sendor 1990 Wake Forest LR 707, especially 720–725. The concept or element
of liability being discussed here is known in German as “Tatbestand”. It is submitted that
“Tatbestand” is best translated as “the definitional elements”. Fletcher 553–554 declares
that “we lack a term (in English) corresponding to the German Tatbestand or Spanish
Tipo that expresses the inculpatory facet of criminal conduct . . .“ Elsewhere Fletcher has
proposed the term “paradigm” as a translation of “Tatbestand” – see Eser in Eser and
Fletcher 1 37 fn 32. This is an excellent brief description of the contents of this require-
ment, but the term is unknown in South African criminal-law terminology. Allen 311
speaks of “definitional element of the offence” – the same term used in this book.

71
72 CRIMINAL LAW

The ideal is that crimes should be defined in such a way, and that their defini-
tional elements should accordingly be such that the definition and its elements
are compatible with what is often called the “principle of fair labelling”. This
principle entails that the definitional elements should be a fair reflection of
what kind of wrongdoing the law seeks to prohibit under a specific heading or
crime. The definitional elements should be such that even lay people would
readily be able to know what type of conduct a specific crime seeks to punish.
Unfortunately, this is not the case in all crimes.2
2 Fulfilment of definitional elements Strictly speaking, the element of
liability under discussion here should not merely be called “the definitional
elements”, but “the fulfilment (or realisation) of the definitional elements”. For
liability there must be not only an act on the part of X, but this act must also
constitute a fulfilment of the definitional elements. X’s act must be in accord-
ance with, or correspond to, the definitional elements.
3 The act and the fulfilment of definitional elements To require a fulfil-
ment of the definitional elements goes further than merely requiring conduct.
This is why it is incorrect to regard the fulfilment of the definitional elements
as forming part of the conduct requirement. On the other hand, the concept
“definitional elements” is wide enough to include X’s act or conduct – for
example sexual penetration, possession, the making of a declaration or the
causing of a situation.
4 Contents of definitional elements Although the definitional elements
always describe the kind of act which is prohibited, it is not limited to a de-
scription of the type of act required. After all, the law does not prohibit mere
possession without more, but possession of particular, circumscribed articles
(such as drugs or unlicenced firearms); neither does the law forbid mere sexual
penetration without more but, for example, sexual penetration between people
who, on account of consanguinity, may not marry each other (incest); nor does
the law forbid the mere making of a declaration without more, but the making
of a declaration which is false and made under oath in the course of a judicial
process (perjury).
Thus the definitional elements refer not merely to the kind of act (possession,
sexual intercourse) but also a description of the circumstances in which the act
must take place, such as for instance, the particular way in which the act must
be committed (eg “violently”, in robbery), the characteristics of the person
committing the act (eg “somebody who owes allegiance” in high treason), the
nature of the object in respect of which the act must be committed (eg “drugs” or
“movable corporeal property” in theft), and sometimes a particular place where
the act has to be committed (eg driving “on a public road”) or a particular time
when or during which the act has to be committed (eg “during the hunting season”).
Let us consider as an example the crime of reckless driving. If one considers
the section of the statute which creates the crime (section 63(1) of the National
________________________

2 Cf the criticism of the definition of the crime of murder in South African law infra V F 3
and XIV A 3 – more specifically the fact that the intentional, unlawful causing of another’s
death in not graded or subdivided into two categories, as is the case in perhaps all other
jurisdictions in the Western world.
 THE DEFINITIONAL ELEMENTS 73

Road Traffic Act 93 of 1996), it is clear that a person commits this crime if he
(1) drives (as this word is defined in the statute) (2) a vehicle (as this word is
defined in the statute) (3) on a public road (as this phrase is defined in the
statute) (4) in a reckless way. The four requirements printed in italics constitute
the definitional elements of this crime. Requirement (1) – the driving – ex-
presses the requirement of the act, which forms part of the definitional elem-
ents. However, requirements (2) and (3) do not form part of the requirement of
an act.
Some crimes, such as murder and culpable homicide, require the existence of
a causal link between the act and a certain situation (the result). The causation
requirement forms part of the definitional elements, and not (as is often assumed)
of the requirement of an act. The causal link is a specification of the circum-
stances in which the act is punishable. The causation requirement is an indi-
cation of how one crime may differ from another: whereas all crimes require an
act, not all require causation. Whether there was an act is one enquiry; whether
the act caused a certain situation (result) is an entirely different one.
If one were to discuss substantive criminal law in a strictly chronological
way, one would have to discuss the definitional elements of each specific crime
at this stage, that is, after the discussion of the concept of an act and before dis-
cussing the concepts of unlawfulness. However, authors of books on criminal
law never follow such a procedure, for there are so many specific crimes, and
the individual definitional elements of these crimes are so numerous, that it is
customary to “suspend”, as it were, the discussion of all these definitional elem-
ents until after an analysis of the other remaining general requirements of liabil-
ity, such as unlawfulness and culpability. Once all these general requirements
have been discussed, the definitional elements of the different specific crimes
will be set out in the second part of this book. This is the customary sequence
of discussion followed in books on criminal law. It is therefore in the second
part of this book that, for example, concepts such as “dignity of the court” (in
the crime of contempt of court), “prejudice” (in fraud), “marriage ceremony”
(in bigamy), “damage” (in malicious injury to property”), and “movable, cor-
poreal property” (in theft) – to mention just a few definitional elements – will
be set out and analysed.
5 Definitional elements and unlawfulness Fulfilment of the definitional
elements should not be confused with the quite distinct requirement of un-
lawfulness. South African writers on criminal law tend to define unlawfulness
merely as an infringement of a criminal-law provision or as compliance with
the definition of the crime.3 This is clearly incorrect. In statements such as
these, two distinct elements of liability – the fulfilment of the definitional elem-
ents and unlawfulness – are confused. The fact that the act complies with the
definition of the crime means no more than that the act accords with the

________________________

3 See De Wet and Swanepoel 69; “Wederregtelik is ’n doen of late indien dit strydig is met
’n verbods- of gebodsbepaling, wat die sanksie ook al mag wees”; Visser, Vorster and
Maré 179, who define unlawfulness as “an infringement of a criminal law provision”;
Burchell and Milton 226, who state that “conduct will be unlawful when it does comply
with the definition of a crime”.
74 CRIMINAL LAW

definitional elements of the relevant crime. It does not yet mean that the act is
unlawful. Before an act can be described as unlawful, it must not only conform
to the definitional elements but it must also comply with the quite distinct
criterion for determining unlawfulness.4
Although one must distinguish between an act complying with the definitional
elements and an act that is unlawful, the former is nevertheless a strong pointer
towards the latter: it in fact means that the act is provisionally unlawful. Before
it can conclusively be branded as unlawful, it must be clear that there are no
grounds of justification for the act.
The definitional elements contain at least the minimum requirements for
liability necessary to constitute a comprehensible and meaningful criminal
norm.5 The definitional elements furthermore correspond to those requirements
of a crime which the prosecution in a criminal trial has to prove in order to
incriminate the accused or prove a so-called “prima facie case” against him.6
When it creates a crime, it is impossible for the legislature to refer to every
conceivable defence (grounds of justification and grounds excluding culpabil-
ity) that X may raise and to stipulate to what extent he may successfully rely on
it. The legislature leaves it to the courts to decide to what extent an act which
complies with the definitional elements may nevertheless be justified or ex-
cused. Yet, as for the requirements contained in the definitional elements, a
court has no choice but to apply them.
6 The concept “wrongdoing” If it is clear that the act not only complies
with the definitional elements but that it is also unlawful, it means that there has
been wrongdoing.7 “Wrongdoing” is thus the general concept which encom-
passes both the definitional elements (and thus the act) and unlawfulness. It
thus summarises all the requirements for liability with the exception of culp-
ability. The expressions “unlawful act” and “wrongdoing” are generally used as
synonyms. The expression “actus reus”, which is often used by the courts,
means the same as “wrongdoing”.
7 Subjective component of definitional elements; relationship between def-
initional elements and culpability The definitional elements do not consist
________________________

4 I 1976 1 SA 781 (RA) 788; Clarke v Hurst 1992 4 SA 630 (D) 652–653; Fourie 2001 2
SACR 674 (C) 678b–c. For an exposition of the criterion for determining unlawfulness,
see infra IV A 8–9. If “unlawful” simply meant “contrary to the requirements set out in
the definition of the crime”, one may well ask why writers of books on criminal law (eg
Hunt-Milton and Burchell and Milton) who venture to define every specific crime, invari-
ably use the word “unlawful” in their definitions of crimes in addition to setting out the
definitional elements of the crime in their definitions. Elementary logic dictates that the
term one sets out to define should not already be included in the definition, otherwise the
definition merely begs the question: “an act is unlawful if it is unlawful”.
5 Fletcher 567: “The minimal demand of the definition of an offence is that it reflects a
morally coherent norm in a given society at a given time. It is only when the definition
corresponds to a norm of this social force that satisfying the definition inculpates the actor.”
6 Fletcher 553–554.
7 This concept is derived from Continental literature. Fletcher 515 ff applies it and similar-
ly describes it as “wrongdoing”. In German it is known as “Unrecht”. On this concept,
see Jescheck and Weigend 245; Schönke-Schröder n 51 ad s 13; Jakobs 159.
 THE DEFINITIONAL ELEMENTS 75

exclusively of objective requirements. They also contain subjective require-

ments, that is, requirements relating X’s intention.
In crimes requiring intention, the intention plays a role, not only in the deter-
mination of culpability, but also in the wrongdoing – a term which, as explained
above, includes the definitional elements. In crimes requiring negligence, both
the courts and writers nowadays accept that the negligence plays a dual role in
that it forms part of both the definitional elements (or “unlawful conduct”) and
culpability.8 As far as crimes requiring intention are concerned, however, our
courts as well as most writers still assume that the intention forms part of
culpability only. This is incorrect. Intention forms part of both the definitional
elements and culpability.9
Since intention plays a role in both the fulfilment of the definitional elements
and culpability, it would not be wrong to incorporate a full discussion of the
concept of intention into the discussion of the present element of liability,
namely the fulfilment of the definitional elements. A number of Continental
authors discuss intention under the definitional elements, while others discuss it
under culpability. It would, however, serve the purposes of this book better to
discuss it under culpability, since such an arrangement of the material accords
more closely with the law as presently applied by the courts in this country.
8 Intention as part of the definitional elements The influence of the psycho-
logical theory of culpability is so strong that people accustomed to placing
intention exclusively under culpability may find it strange to hear that intention
already plays a role in determining whether there has been compliance with the
definitional elements as well. It is precisely for this reason that it is necessary to
explain in some detail why intention is already relevant at this stage of the
enquiry into liability.
It is important to remind oneself once again that the definitional elements
contain at least the minimum requirements necessary to constitute a meaningful
criminal norm. If, after inquiring into whether there has been a fulfilment of the
definitional elements, one enquires into unlawfulness, the question one has to
ask oneself is whether the conduct complying with the definitional elements
accords with the criterion for unlawfulness, namely the boni mores or the legal

________________________

8 Ngubane 1985 3 SA 677 (A) 686E–F, 687E; Ex parte Minister van Justisie: in re S v
SAUK 1992 4 SA 804 (A) 808; Burchell and Milton ch 35; Bertelsmann 1975 SALJ 59
60–62; Botha 1977 SALJ 29; Whiting 1991 SALJ 431 433–435.
9 The reason why the South African courts and many (although fortunately not all) writers
still adhere to the idea that all the subjective requirements for culpability belong to only
one element of liability, namely culpability, is the strong influence of the psychological
theory of culpability. This theory of culpability, which has its roots in outdated nineteenth-
century concepts such as positivism and the naturalistic theory of an act, and which has
long since been rejected on the Continent, implies that the presence of elements of liabil-
ity other than culpability can be determined only with the aid of objective criteria. The
psychological theory of culpability will be explained and also subjected to criticism
below in the discussion of the culpability requirement. See infra V A 9–10. For support
for the view expressed in the text, see Sendor 1990 Wake Forest LR 707 717–719, who
emphasises “the dual nature of mens rea elements as relevant to both wrongfulness and
responsibility [ie, culpability]”.
76 CRIMINAL LAW

convictions of society.10 Yet before this question can be answered, the “conduct
complying with the definitional elements” must be recognisable as a fulfilment
of a criminal norm; it must be recognisable as conduct which the criminal law
seeks to prohibit or disallow, as opposed to conduct which is merely “neutral”,
that is, might just as well prima facie amount to perfectly lawful behaviour. For
the conduct to be so recognizable, X’s intention must necessarily also form part
of the definitional elements. The aim of the discussion which follows is to
prove and illustrate this point.
(a) Crimes of double intention In crimes requiring a double intention, that is
crimes where, apart from the intention to commit the act, an intention to
achieve some further aim by means of the act is required,11 one can determine
whether the act was unlawful12 only once it is clear that, through his act, X
intended to achieve the further aim. Without the existence of such an intent the
act is not recognisable as the commission of something which the law seeks to
prohibit – in other words, as the fulfilment of definitional elements. It follows
that at least part of X’s intention must be found to exist before the question
relating to unlawfulness (and a fortiori, before the question relating to culpabil-
ity) can be inquired into.13
(b) Crimes requiring a certain characteristic intention Further evidence of
the existence of subjective requirements in the definitional elements may be
found in the construction of certain other crimes which require a certain char-
acteristic intention, such as theft and high treason.
An analysis of the crime of theft shows that it is impossible to determine
whether there was theftuous conduct (or a fulfilment of the definitional elements
of this crime) without first enquiring whether X acted with the characteristic
________________________

10 Infra IV A 8.
11 Examples of such crimes are abduction (where, in addition to intending to remove the
minor, X must intend to marry or have sexual intercourse with such minor – see infra XII
B; corruption (where, in addition to intending to give a gratification, X must, through
such giving, intend to induce the receiver to act in a certain way contrary to his duties –
see infra XIII A; and housebreaking with intent to commit a crime (infra XX C).
12 One can only determine whether an act was unlawful once it is clear that the act complies
with the definitional elements. This is the logical sequence in which liability is deter-
mined.
13 Let us assume that X is charged with corruption and that he raises the defence of coercion
(necessity). Necessity is a ground of justification which, if successfully raised, excludes
the unlawfulness of the act. Before the question relating to unlawfulness can be answered,
one must first be certain that X committed an act which complied with the definitional
elements of the crime concerned. Yet how is it possible to know whether the act complied
with the definitional elements of this crime (corruption) if one does not know whether the
gratification was given to the receiver with the intention of inducing him to act in a cer-
tain way? The mere objective giving of, for instance, money to an official or an agent is
not prohibited: it will only be recognisable as proscribed conduct if one knows that the
money was given with the intention of inducing the official or agent to act improperly in
some way, such as to award to the giver a tender which in law he is not entitled to. It fol-
lows that one must first determine the intention with which the benefit was given before
determining the unlawfulness of the conduct. Accordingly, the intention with which the
benefit was given forms part of the definitional elements of the offence as well, and not
only of the culpability requirement. The same principle applies to other offences requir-
ing a double intent.
 THE DEFINITIONAL ELEMENTS 77

intention required for this crime, namely an intention to appropriate the prop-
erty.14 If one excludes this intent from the definitional elements, the latter
becomes meaningless in the sense that they describe conduct which might as
well be perfectly innocent.15 It follows that the intention to appropriate must be
determined before inquiring into unlawfulness and culpability.
The same holds good for high treason. A closer look at this crime shows that
the conduct required need not take the form of any specifically defined external
act. Any act – even one which, viewed from the outside, seems completely inno-
cent – can amount to high treason, provided X committed it with the peculiar
intent required for this crime, namely the hostile intent.16 It is only X’s subjec-
tive state of mind (intention, knowledge) that brings his conduct within the
definitional elements of this crime.
(c) Crimes of attempt That X’s intention should form part of the definitional
elements becomes equally clear if one considers attempt to commit a crime,
especially the form of attempt known as attempt to commit the impossible. For
example, X, intending to kill his enemy Y, fires a shot at a realistically stuffed
scarecrow in the mistaken belief that he is killing Y. X is guilty of attempted
murder.17 What constitutes the wrongdoing (unlawful fulfilment of the defini-
tional elements) for which X is punished? If one ignores X’s intent, only the
external act, namely shooting at a scarecrow, remains. This, however, does not
amount to conduct proscribed by the law. Intention must therefore form part of
the definitional elements.18
________________________

14 The conduct proscribed in this crime cannot be described merely with the aid of objective
concepts (ie, concepts relating to external conduct only) such as “take”, “hold”, “carry
away” or “handle”. These concepts can apply equally to non-theftuous acts, such as those
committed by somebody who merely uses the property temporarily or merely looks after
it on behalf of the owner.
15 Assume that in a certain case the evidence reveals that the following externally perceiv-
able events have taken place: X has removed his neighbour Y’s furniture without Y’s
consent and taken it to his own house. Can one merely, on the strength of such “objective
conduct”, now conclude that there was conduct conforming to the definitional elements
of the crime of theft? Certainly not. In order to answer this question one must know what
X’s intention was when he carried away the furniture. If, eg he intended to protect Y’s
possessions, which were being threatened by flood waters, by carrying them away and
storing them temporarily in his own house which is situated on a higher level, there was
obviously no conduct conforming to the definitional elements.
16 Assume that X’s act consisted in nothing more than affording Y, at his request, a sleep-
ing-place for one night. Can one, on the strength of this simple set of acts alone, conclude
that X has committed an act which conforms to the definitional elements of high treason?
Obviously not. Assume, however, that the evidence further brings to light the following:
Y’s plan was to look for the head of state the next day and, having found him, murder
him; X was aware of what Y intended to do, but nevertheless proceeded to give Y accom-
modation in the knowledge that by so doing he made it easier for Y to achieve his ultimate
goal. If this further evidence is taken into account, one can without any difficulty con-
clude that X’s conduct does indeed conform to the definitional elements of the offence.
Yet, viewed from the outside, there is nothing to indicate that X’s conduct is a fulfilment
of the definitional elements of the crime.
17 Davies 1956 3 SA 52 (A); infra VIII B 8.
18 A consideration of certain other forms of attempt leads to the same conclusion. Eg X fires
a shot which just misses Y. Does this amount to conduct conforming to the definitional
elements of the crime of attempted murder? This question can be answered only by
[continued]
78 CRIMINAL LAW

(d) Possession In the discussion above of crimes consisting of the unlawful

possession of an article,19 it was pointed out that the act of possession always
contains a certain subjective requirement, namely the animus or intent to possess.
In fact in Jacobs20 the Appeal Court explicitly held that the animus element of
possession does not form part of culpability, but of the act. Van Heerden JA
held that one cannot say that X possesses dagga unless he knows that the article
over which he is exercising control, is in fact dagga. This subjective knowledge
of X therefore relates to the act of possession, and not to culpability.
(e) Remaining crimes As far as the remaining crimes (ie, crimes not men-
tioned and discussed above) are concerned, the principle remains that X’s
intention should form part of the definitional elements as well, and not be con-
fined exclusively to culpability. Intention, like negligence, also forms part of
the definitional elements because it constitutes part of the minimum require-
ments which must be mentioned in the definitional elements of the crime in
order to make such definitional elements understandable and to indicate how it
differs from other crimes.
Thus, to summarise: The investigation into whether the definitional elements
have been complied with logically precedes the investigation into unlawfulness
(and after that, culpability). It was shown that an investigation into the fulfil-
ment of the definitional elements necessarily includes an investigation into X’s
subjective state of mind. It therefore follows that the investigation into X’s
subjective state of mind takes place before the investigation into unlawfulness
(and a fortiori culpability). It is, however, not disputed that intention also plays
a role in determining the existence of culpability. Intention plays a double role
in the determination of criminal liability, namely as an element of both the
definitional elements and of culpability. This is an important principle to bear
in mind when the concept of culpability is discussed below.
9 Arrangement of crimes according to their definitional elements Crimes
may be divided into different groups or categories according to their definitional
elements.
Firstly, one may differentiate between crimes which impair legally protected
interests (eg malicious injury to property, assault and murder) and crimes which
merely endanger such interests (eg negligent driving, unlawful possession of a
firearm, unlawful dealing in, or possession of, drugs and high treason).
Secondly, one may differentiate between crimes committed by means of a
single act (eg assault and fraud) and crimes committed by means of more than
one act (eg robbery, which requires both violence and an appropriation of
property).
________________________

considering X’s intention. If, eg he pulled the trigger under the impression that the fire-
arm was unloaded, his conduct obviously does not conform to the definitional elements
of this crime. If, in the attempted crime the intention forms part of the definitional elem-
ents, the same consideration must apply a fortiori to the completed crime. It would be
illogical to assume that intention forms part of the definitional elements in attempt but not
in the completed crime.
19 Supra II C.
20 1989 1 SA 882 (A) 656–661.
 THE DEFINITIONAL ELEMENTS 79

Thirdly, it is possible to differentiate between crimes requiring a single intent

(such as murder, rape and assault) and crimes requiring a double intent (such as
abduction, where, in addition to intending to remove the minor, X must also intend
to marry or have sexual intercourse with him or her; corruption; housebreaking
with intent to commit a crime; and assault with intent to do grievous bodily harm).
Fourthly, one may differentiate between crimes which can be committed only
by means of one’s own body (sometimes referred to as “autographic crimes”)
(such as the old common-law crimes of rape and incest) and crimes which can
also be committed through the instrumentality of another (such as murder or
assault).
Fifthly, one may differentiate between crimes in respect of which a certain
act or omission is proscribed, irrespective of its result (formally defined crimes)
and crimes in respect of which any conduct that causes a certain result is pro-
scribed (materially defined crimes, also called result crimes).
These differentiations may have various consequences, which will be pointed
out in the course of the discussion in this book. The fifth differentiation pointed
out above, namely that between formally and materially defined crimes, is
particularly important and is discussed immediately below. As will be seen, this
differentiation deals with a concept which is of particular importance in crimi-
nal law, namely causation. It must be emphasised that causation is not a general
element of liability besides conduct, fulfilment of the definitional elements, un-
lawfulness and culpability. It is merely a way in which the definitional elements
of certain crimes are fulfilled. It therefore forms part of the definitional elements.

B CAUSATION
1 Summary of rules for determining causation Before analysing this topic,
it is useful first to summarise the most important rules pertaining to causation
presently applied in our law:

(1) In order to find that X’s act had caused a certain condition (such as Y’s
death), X’s act must first be a factual cause and secondly a legal cause
of Y’s death.
(2) In order to determine whether X’s act is a factual cause of Y’s death, the
conditio sine qua non formula is applied: X’s act is a factual cause of the
death if X’s act cannot be thought away without Y’s death disappearing
at the same time.
(3) Many factors or events may qualify as factual causes of a prohibited
condition. In order to eliminate factual causes which are irrelevant, the
criterion of legal causation is applied.
(4) X’s act is the legal cause of Y’s death if a court is of the opinion that
policy considerations require that X’s act be regarded as the cause of Y’s
death. By “policy considerations” is meant considerations which ensure
that it is reasonable and fair to regard X’s act as the cause of Y’s death.
(5) In order to find that it would be reasonable and fair to regard X’s act as
the cause of Y’s death, a court may invoke the aid of one or more specific
theories of legal causation. Among these theories are the “proximate
cause” criterion, the theory of adequate causation and the novus actus in-
terveniens criterion.
80 CRIMINAL LAW

2 Formally and materially defined crimes Crimes may be divided into two
groups, namely formally and materially defined crimes.
In formally defined crimes, a certain type of conduct is prohibited irrespect-
ive of the result of such conduct. Examples of crimes falling in this category are
the possession of drugs, driving a motor car negligently, and perjury.
In materially defined crimes, on the other hand, it is not specific conduct which
is prohibited, but any conduct which causes a specific condition. Examples of
this type of crime are murder, culpable homicide, arson and abortion. Let us
consider the example of murder. Here, the act consists in causing a certain
condition, namely the death of another person. In principle it does not matter
whether X caused Y’s death by stabbing him with a knife, shooting him with a
revolver, poisoning him or, in the dark, showing him a path to a destination
which X knows, will lead him over a high precipice. The question is simply
whether X’s conduct caused Y’s death, irrespective of the type of conduct em-
ployed by X.
Sometimes formally defined crimes are, for the sake of brevity, dubbed “con-
duct crimes” and materially defined crimes “result crimes”.
3 The problem to be solved In materially defined crimes, the question must
always be answered whether X’s act caused the prohibited situation or state of
affairs or, to put it differently, whether there was a causal link (nexus) between
X’s conduct and the prohibited situation (eg Y’s death).
In the vast majority of cases of materially defined crimes which come before
the courts, determining whether X’s act was the cause of the prohibited situa-
tion does not present any problems. If X shoots Y in the head with a revolver or
stabs him in the heart with a knife, and Y dies almost immediately, and if noth-
ing unusual (such as a flash of lightning) which might be shown to have occa-
sioned the death has occurred, nobody will doubt that X has caused Y’s death.
However, the course of events may sometimes take a strange turn. This will
be clear from the examples and decisions which will be given or referred to
below. For example, following X’s assault on Y, Y may die after the ambu-
lance transporting him to the hospital crashes into a tree, or after he is struck by
lightning on the spot where he is lying after the assault, or after he receives the
wrong medical treatment, or because he is a manic-depressive person and the
assault induces him to commit suicide. In such circumstances can one still allege
that X has caused Y’s death? Should the cause of death not rather be seen as the
motor accident, the flash of lightning, the incompetent medical practitioner or
Y’s own conduct?
In order to keep the discussion which follows within bounds, the question of
causation will be discussed only in the context of the crimes of murder and
culpable homicide, since problems in connection with causation in criminal law
generally arise in the context of these crimes.
4 Precipitating death In the determination of causation in cases of murder
or culpable homicide it must be remembered that “to cause the death” actually
means to cause the death at the time when, and the place where, Y died. All
people die at some time; therefore to ask whether the act caused the death is in
fact to ask whether the act precipitated the death. The fact that Y suffered from
an incurable disease from which he would shortly have died in any event, or
 THE DEFINITIONAL ELEMENTS 81

that Y would in any event have been executed a mere hour later, does not
afford X a defence.
5 Factual and legal causation Despite conflicting opinions about the law
relating to causation in legal literature, the courts have, especially since 1983
(when the Appellate Division delivered judgment in Daniëls)21 laid down cer-
tain broad principles relating to the determining of a causal link. The courts
have confirmed that in order to determine whether certain conduct has caused a
certain prohibited condition (eg Y’s death), two requirements must be met: first
one must determine whether the conduct was a factual cause of the condition
(in other words whether there was a factual causation) and secondly one must
determine whether the conduct was also the legal cause of the condition (in
other words whether there was legal causation). Only if the conduct is both the
factual and the legal cause of the condition can a court accept that there has
been a causal link between the conduct and the condition.22
6 Arrangement of discussion The discussion of causation which follows
will follow the above-mentioned two-part classification of the field of investi-
gation. The following is a diagram of the broad arrangement of the field of
investigation:

Causal = Factual Legal

link causation
+ causation

Act is Policy considerations

conditio sine require that the act qualify
qua non as a cause. The following
of the criteria may serve as
result aids in this respect:

Individualisation theories, Theory of Absence of a

such as “proximate cause”, adequate novus actus
“direct cause”, etc. causation interveniens

7 Factual causation – conditio sine qua non In order to determine whether

an act is a factual cause of the prohibited situation all the relevant facts and
circumstances must be investigated, and one has to decide with the aid of one’s
knowledge and experience whether the prohibited situation flows from X’s
conduct. Sometimes it may be necessary to rely on expert evidence.23
If one decides that the conduct is indeed a factual cause of the situation, there
is a useful way of checking whether one’s conclusion is correct: one can use the
conditio sine qua non formula. According to this formula or theory one must
________________________

21 1983 3 SA 275 (A).

22 Daniëls supra 331C–D; Mokgethi 1990 1 SA 32 (A) 39; Tembani 2007 1 SACR 355
(SCA) par 10.
23 Eg to prove that certain medication administered by X to Y, who was a diabetic or who
suffered from his heart, could have caused his death.
82 CRIMINAL LAW

ask oneself what would have happened if X’s conduct had not taken place:
would the result nevertheless have ensued? If the answer to this question is
“No”, one can be sure that the conduct is a factual cause of the situation or re-
sult. If the answer to this question is “Yes”, one knows that the conduct was not a
factual cause of the situation. Conditio sine qua non literally means “a condition
(or antecedent) without which . . . not”; in other words, an antecedent (act or
conduct) without which the prohibited situation would not have materialised.
Conduct is therefore a conditio sine qua non for a situation if the conduct
cannot be “thought away” without the situation disappearing at the same time.
A convenient English equivalent of this formula is but-for causation (or more
precisely, but-for not causation). For conduct or an event to be a but-for cause,
one must be able to say that but for the conduct or event, the prohibited situa-
tion would not have happened.
The application of the conditio sine qua non formula may be illustrated as fol-
lows: Assume X assaults Y and injures him to such an extent that he must under-
go an operation. Y dies during the operation. In this case X’s act is a factual cause
of Y’s death, because if he had not assaulted Y, it would not have been necessary
to operate on Y and Y would not have died. Contrast, however, the following
situation: X administers poison to Y. It is a poison that takes a reasonably long
period to have an effect. Before the poison can kill Y, Y suffers a heart attack due
to natural causes (in other words, a cause not linked to the poisoning) and dies. In
this case X’s act is not a factual cause of Y’s death because Y would have died at
that particular time even had X not administered the poison.
The conditio sine qua non theory has been criticised by various writers24 who
point out, quite correctly, that one cannot describe conditio sine qua non as a
test to determine the presence of causation. One first decides on the strength of
all the facts whether the conduct is the cause of Y’s death, and only after
concluding that it is, does one declare that the conduct was a conditio sine qua
non of death. One cannot determine whether the conduct is a conditio sine qua
non of the result before deciding that there is a causal connection.
If one states that “but for X’s act Y would not have died”, it means that one
has already, on the strength of other considerations, decided that the act is a
factual cause of Y’s death: it means that one is merely stating one’s conclusion.
The “other considerations” mentioned here refer to knowledge and experience
which lead one to conclude that one situation flows from another. For example,
one knows from experience that if one strikes a match and throws it onto petrol,
the petrol catches alight. Thus conditio sine qua non is not a neutral, mechani-
cal technique that one can use to determine beforehand (ie, before one already
knows that there is a causal connection between the act and the particular situ-
ation) whether a certain act caused a certain situation. This consideration has
led most Continental writers to reject this theory as a test to determine the exist-
ence of a causal connection; according to them it may at most be used as a
method of checking whether a causal connection which one has already accepted,
________________________

24 Van Rensburg 3–65; Van Rensburg Huldigingsbundel Pont 395–396; 1977 TSAR 101;
Visser 1989 THRHR 558; Visser, Vorster and Maré 112–117, 120–122; Potgieter 1990
THRHR 267.
 THE DEFINITIONAL ELEMENTS 83

in fact exists (in other words whether one’s decision that there is a causal con-
nection is correct).25
All this does not mean that the conditio sine qua non formula is worthless
and that it should be rejected as a checking mechanism. This formula or theory
has, in any event, already attained such a firm footing in our case law26 that it is
difficult to believe that the courts would easily reject it. It can be accepted that
this concept will retain the hold it has already secured in our legal literature and
case law. However, in the light of the above criticism of this concept, one
should guard against describing conditio sine qua non as a test for determining
(factual) causation. It would, however, not be wrong to describe it as a “formu-
la”, a “concept” or a “theory”. In the discussion of causation below this termi-
nology will sometimes be used.
8 Factual causation covers a wide field A specific situation or result does
not have one factual cause, but a whole number of factual causes. Every condi-
tion imaginable which cannot be “thought away” without the prohibited situa-
tion also disappearing qualifies as a factual cause or conditio sine qua non of
the particular situation (result). If X stabs Y with a knife and kills him, it is not
only the stabbing which is a conditio sine qua non of the death, but also, for
example, the manufacture and sale of the knife.
However, one must bear in mind that the determination of causation is not
limited to ascertaining whether there was factual causation. In fact, once one
has decided that there is factual causation, one has merely reached the half-way
mark in one’s investigation into the existence of a causal link: as will be seen
hereafter, the second half of the investigation comprises an investigation into
legal causation. This latter investigation essentially comprises the application of
some criterion whereby the wide ambit of factual causation and the operation of
the conditio sine qua non formula may be limited.
9 Legal causation – general The mere fact that X’s act is a factual cause of
the forbidden situation is still not sufficient ground upon which a court may
find that there is a causal link between the act and the situation (result). Before
a court can find that there is such a causal link, it must be clear that the act is
not merely a factual, but also a legal cause of the situation.27 This means that
the act must qualify as a cause of the forbidden result not only according to the
criteria of natural science or one’s ordinary experience, but also according to
the criteria applied by the law. The legal criteria are narrower than those
applied to determine factual causation; they are based upon normative value
________________________

25 See the criticism of this theory by Jescheck and Weigend 281–282; Schönke-Schröder
n 74 ad s 13; Jakobs 186 (“Eine verwirrende, das Kausalproblem verfälschende und letz-
lich restlos überflüssige Rolle spielt . . . die . . . conditio sine qua non”); Schmidhäuser
226 (who describes the theory as “Selbsttäuschung”); Hazewinkel-Suringa-Remmelink
175–176.
26 Daniëls 1983 3 SA 275 (A) 331B–C: “Daar kan weinig twyfel bestaan, dat in ons reg-
spraak die bepaling van ‘feitlike’ oorsaaklike verband op die grondslag van die conditio
sine qua non geskied”; see also 332F–G and 324G–H. See also Minister of Police v
Skosana 1977 1 SA 31 (A) 33, 34–35, 43–44; Van As 1967 4 SA 594 (A) 601; Haarmeyer
1971 3 SA 43 (A) 47H; Tembani 2007 1 SACR 355 (SCA) par 10.
27 Daniëls 1983 3 SA 275 (A) 325A, 331C–D; Mokgethi 1990 1 SA 32 (A) 39–40, especially
39D and 40C; Madikane 1990 1 SACR 377 (N) 384G; Tembani supra par 10.
84 CRIMINAL LAW

judgments or policy considerations, on questions such as whether it is reason-

able or just to regard the act as a cause of the forbidden situation. Only an act
which is a factual cause of the situation can qualify as a legal cause thereof.
10 The criterion for legal causation The question that arises next is what
criterion to apply to determine whether an act which is a factual cause of the pro-
hibited situation also qualifies as a legal cause of the situation. This question leads
one to a number of different theories or criteria formulated in the legal litera-
ture. These theories are usually referred to as the “theories of legal causation”.
In Mokgethi28 the Appellate Division held that it is wrong to identify only
one of these theories as the correct one to be applied in all cases and in so doing
to exclude from consideration all the other theories of legal causation. Accord-
ing to the court one should apply a flexible criterion: the overriding considera-
tion in the determination of legal causation is the demands of what is fair and
just; in endeavouring to ascertain what is a fair and just conclusion, however, a
court may take into consideration the different theories of legal causation
referred to above and use them as guides in reaching a conclusion.
In the discussion which follows, the most important theories of legal causa-
tion will be briefly explained.
11 The individualisation theories This generic concept includes a number
of theories or tests which all have the following in common: among the great
number of conditions or acts which constitute factual causes of the prohibited
situation only a single one – usually the most operative condition – must be
singled out as the legal cause. Thus, it is argued, for example, that one must look
for the “proximate” cause or condition, or the “substantial cause”, or the cause
which in terms of its value or importance is the most decisive (causa causans),
or the “direct cause” or the “efficient cause”. These (and similar) expressions
(such as “immediate” or “effective cause”) amount to substantially the same thing,
namely that one must search for only one individual condition as the legal cause
of the prohibited situation.
The objections to these theories are that the criteria they adopt are arbitrary
and depend upon coincidence. Two or more conditions may be operative in
equal measures in bringing about a result. This is especially so when a number
of people participate in the commission of a crime, as where X incited or
persuaded Z to commit a murder, which Z did while W stood guard in order to
warn Z should the police arrive. Did X, Z or W cause the death? In a situation
such as this, where three different people have acted, one cannot regard the act
of one as the only cause of death to the exclusion of the acts of the other two.
The principle that a situation may have more than one cause is recognised in
criminal law. It is wrong to assume that only the very last grain in the scale
causes it to tip and not the combined mass of the other grains too.
As a result of these objections, the individualisation theories have, for the
most part, been rejected on the European continent. Although some of these
theories have been followed in certain South African judgments29 there are also
________________________

28 1990 1 SA 32 (A) 40–41.

29 Burger 1959 2 SA 110 (T) 113C (“causa causans”); Grobler 1972 4 SA 559 (O) 561C
(“die direkte en enigste oorsaak”); Grobler 1974 2 SA 663 (T) 667H (“die onmiddellike
[continued]
 THE DEFINITIONAL ELEMENTS 85

cases in which the courts have refused to adopt these criteria.30 The clearest
example is Daniëls,31 in which two judges of appeal expressly refused to accept
that only an act which is a proximate cause of the death could qualify as its
cause.32 It is submitted that this view is correct. “Proximate cause” and other
individualisation theories are too vague and arbitrary to serve as a satisfactory
criterion.
12 The theory of adequate causation Because of the vagueness of the indi-
vidualisation theories, many jurists have rejected attempts to identify only one
individual action as the cause of a condition. Instead, they base a causal rela-
tionship on generalisations which an ordinary person may make regarding the
relationship between a certain type of event and a certain type of result, and on
the contrast between the normal and the abnormal course of events. This general-
isation theory (a term used to distinguish it from the individualisation theories)
is known as the theory of adequate causation.
According to this theory an act is a legal cause of a situation if, according to
human experience, in the normal course of events, the act has the tendency to
bring about that type of situation. It must be typical of such an act to bring
about the result in question. If the turn of events is atypical in the sense that the
act has brought about an unlikely, unpredictable or uncontrollable result, there
is no “adequate relationship” between the act and the result and the act cannot
be said to have caused the result. To put it more simply, the act is the cause of
the situation if it can be said: “That comes of doing so-and-so”. The test always
involves a consideration of the probable results of an act, and for this reason the
theory is reminiscent of the test sometimes applied in Anglo-American law, accord-
ing to which one must determine whether the result corresponds to the “natural and
probable consequences” or the “reasonable consequences” of the act.33
To strike a match is to perform an act which tends to cause a fire, or which in
normal circumstances has that potential. If, therefore, X strikes a match and
uses the burning match to set a wooden cabin alight, one can aver without
difficulty that his act was the cause of the burning down of the cabin. However,
the question arises whether his act can be described as the cause of the burning
________________________

oorsaak”); Jantjies 1991 1 SACR 74 (C) 78B (“die regstreekse oorsaak”); Tembani 1999
1 SACR 192 (W) 203a (“an operating and substantial cause”).
30 Eg Youngleson (1) 1948 1 SA 819 (W) 821; Grotjohn 1970 2 SA 355 (A) 363–364.
31 1983 3 SA 275 (A).
32 See 341C (per Van Winsen AJA), as well as 331A–B and 332–333, especially 333G (per
Jansen JA). Contrast, however, the approaches of Nicholas AJA 304D–E and Trengove
JA 324–325. Daniëls’s case is discussed in more detail infra par 21.
33 See the application of this theory in Loubser 1953 2 PH H190 (W) in which Rumpff J
declared that in the eyes of the law an act is a cause of a situation if, according to human
experience, the situation will flow from the act. The test applied in this decision was ex-
pressly accepted and followed in Grobler 1972 4 SA 559 (O) 560–561. Although in Daniëls
supra 332A Jansen JA doubted whether it would be correct to describe the novus actus gen-
erally in terms of the theory of adequate causation, it is significant that he later declares on
the same page (332H): “Volgens menslike ervaring het die skote deur die eerste appellant
die algemene neiging gehad om in die normale loop van sake die dood deur ’n skietwond
teweeg te bring.” This is an application of the theory of adequate causation. See also Coun-
ter 2000 2 SACR 241 (T) 250b–c (“. . . is, in the ordinary human experience, totally unex-
pected”); Ramosunya 2000 2 SACR 257 (T) 260–265.
86 CRIMINAL LAW

down of the cabin in the following circumstance: All he does is to call a dog.
The dog jumps up and in so doing frightens a cat. The frightened cat jumps
through a window of the cabin, knocking over a lighted candle which in turn
sets the whole cabin alight. If one applies the theory of adequate causation, one
must conclude that in this situation X’s act was not the legal cause of the
burning down of the cabin, because all that X did was to call a dog, and merely
calling a dog is not an act which, according to human experience, in the normal
course of events has the tendency to cause a wooden cabin to burn down.
In order to determine whether there is an “adequate relationship” between the
act and the result, all the factual circumstances ascertainable by a sensible
person should be taken into consideration. If X gives Y, who has a thin skull, a
light slap on the head and Y dies, the fact that Y had a thin skull should be
taken into consideration in the application of the test. The question is therefore
not “has a slight blow to another’s head the tendency to cause death?” but “has
a slight blow to the head of somebody who has a thin skull the tendency to
cause death?” Since the answer to the latter question is “yes”, there is in terms
of the theory of adequate causation a causal relationship in this type of situation.
However, this does not mean that X’s particular knowledge is left out of con-
sideration in determining what a probable result would be in the circumstances.
The criterion is the knowledge of an ordinary sensible person who in addition
has the extra knowledge which X may happen to have. Thus if X has some
additional knowledge regarding the nature or effect of the act compared to what
an objective observer would have, that additional knowledge must be taken into
consideration. Furthermore, in deciding what a probable result might be, the
totality of human knowledge must be taken into consideration, including
knowledge which only a specialist in a particular field might have. Even
knowledge which comes to light only after the occurrence of the events in
question may be taken into consideration.34
When applying the sine qua non theory one applies an objective and diagnos-
tic test, that is, one looks back at events; when applying the theory of adequate
causation one uses an objective prognostic test, that is, one looks forward as
from the moment of the act and asks whether that type of result was to be
expected. An advantage of the test is that it limits the field of possible liability
by taking into account man’s ability to direct or steer the chain of causation and
in this way eliminates the role of mere chance.
13 Novus actus interveniens This expression means “a new intervening
event”. It is an important criterion which the courts in particular apply to deter-
mine causation, although here, as will be shown later, one is, strictly speaking,
not dealing with yet another theory of causation. If a novus actus interveniens
(sometimes abbreviated to novus actus or nova causa) has taken place, it means
that between X’s initial act and the ultimate death of Y, an event which has
broken the chain of causation has taken place, preventing one from regarding
X’s act as the cause of Y’s death. Novus actus interveniens is actually a nega-
tive “test” of causation: a causal relationship is assumed to exist if an act is a
conditio sine qua non of a result and a novus actus is lacking.
________________________

34 Van Rensburg 195–197; Van der Walt 1966 THRHR 244 251; Hart and Honoré 482–
483; Schönke-Schröder n 87 ad s 13; Joubert 1965 Codicillus 6 10.
 THE DEFINITIONAL ELEMENTS 87

An example of the application of this concept is the following: X inflicts a

light, non-lethal wound on Y’s head. Y is taken to a doctor for treatment. The
moment before he enters the building in which the doctor’s rooms are, Y is
struck and killed by lightning. If X had not assaulted Y, Y would not have gone
to the doctor and would therefore not have been struck by lightning; X’s act is
therefore a sine qua non of Y’s death. Nevertheless X’s act is not regarded as
the legal cause of death because the flash of lightning was a novus actus. The
position would be the same if, after the assault, and whilst Y was being taken to
hospital in an ambulance, which was being driven recklessly, an accident
occurred in which Y was killed; or if a fire broke out in the hospital to which Y
had been admitted for treatment and Y died in the fire.
If X performs an act which is a conditio sine qua non of Y’s death and X, Y
or a third party (Z) subsequently performs another act which hastens Y’s death,
it does not necessarily mean that the latter act is regarded as a novus actus. If,
for example, X assaults Y, who runs away in order to avoid being assaulted
further and then in the process of fleeing sustains a lethal injury as a result of
which he dies, the causal relationship between X’s assault and Y’s death is not
broken. The position is the same if the medical treatment which Y receives in
hospital is administered in good faith and with normal care, but subsequently
proves to have been the wrong treatment,35 or if X gives Y, who is suffering
from depression, a gun with which he may shoot himself if he so wishes, and Y
does in fact kill himself.36
The important question which now arises is how one can know whether a
subsequent event qualifies as a novus actus so that the earlier one may no
longer be regarded as a cause of the prohibited situation. In Grotjohn37 Steyn
CJ said that a later event can be deemed to have broken the causal link only if it
is a completely independent act, having nothing to do with and bearing no
relationship to X’s act. A reasonable inference to be drawn from the examples
in our case law is that an event can be a novus actus interveniens only if it is an
unsuspected, abnormal or unusual event, in other words one which, according
to general human experience, deviates from the ordinary course of events and
cannot be regarded as a probable result of X’s act. Viewed thus, there is practi-
cally no difference between the test to determine a novus actus and the test of
adequate causation.
An event can qualify as a novus actus only if it is itself a conditio sine qua
non of the resultant situation and if X had not foreseen or intended that it
should result in the prohibited situation (such as Y’s death).38
14 The foreseeability theory According to this theory an act is a legal cause
of a situation if the situation is reasonably foreseeable for a person with a
________________________

35 Infra par 21.

36 Infra par 20.
37 1970 2 SA 355 (A) 364A. For other decisions dealing with novus actus, see Hibbert 1979
4 SA 717 (D) 721–722; Daniëls 1983 3 SA 275 (A); Williams 1986 4 SA 1188 (A);
Madikane 1990 1 SACR 377 (N) 384G; Tembani 1999 1 SACR 192 (W); Lungile 1999 2
SACR 597 (SCA) 605–606; Counter 2003 1 SACR 143 (SCA) 153; Agliotti 2011 2
SACR 437 (GSJ), discussed critically by Jordaan 2011 SACJ 356. For a detailed discus-
sion of the judgments in Tembani and Counter, see Carstens 2006 SACJ 192.
38 Infra par 25.
88 CRIMINAL LAW

normal intelligence.39 The objection to this test is that it confuses the require-
ment of causation with the requirement of culpability (and more particularly
negligence).
15 Criterion applied by courts: policy considerations Having set out the
most important theories or tests for determining legal causation, the question
arises which one is the correct one to apply. It is relatively easy to set out the
courts’ answer to this question: the Appellate Division has, especially in
Mokgethi,40 stated very clearly that it is incorrect to single out one of these
theories as the only correct one and then to apply that theory in all cases. The
court held that courts should adopt a flexible attitude, which implies that a court
should not regard only one specific theory as the correct one. One criterion may
produce the fairest result in one set of facts, while another set of facts may best
be served by applying another criterion. According to the Appellate Division,
the overriding consideration in deciding upon legal causation is that a court
should be guided by policy considerations. This means that a court should
strive towards a conclusion which would not exceed the limits of what is
reasonable, fair and just. The particular theories of legal causation discussed
above, such as “proximate cause”, adequate causation and the absence of a
novus actus, are aids that may be applied in order to reach a just conclusion.
16 Theory of adequate causation preferable The courts’ flexible, open
approach to legal causation, with its references to “what is fair and just”, may,
on a purely theoretical level, appear to be very equitable, but the question does
arise whether this open approach is not – precisely because of its flexible nature
– too vague. The price a legal system pays for criteria which are too vague is
lack of legal certainty. The danger of adopting such a wide criterion is that
when a court is confronted with a concrete set of facts in respect of which there
has not yet been an earlier precedent, it would simply rely on its intuition in
deciding whether a particular act or event is legally a cause of a situation.
It is submitted that the best criterion to apply is the adequate-causation test.
Objections to the different individualisation theories have already been discussed.
In the discussion of the novus actus interveniens it was pointed out that this
criterion relies to a large extent upon similar considerations to those underlying
the theory of adequate causation. It is merely a negative expression of the
adequate-causation test: a situation is not regarded as causally related to a
preceding act if it arose in an unusual or unexpected way.
Although the courts do not want to bind themselves to accept the adequate-
causation test, it is nevertheless very noticeable that two important Appellate
Division cases dealing with causation in criminal law, namely Daniëls 41 and
Mokgethi,42 are completely compatible with an application of this test. In his
reasons in Daniëls for finding that there had been causation, Jansen JA used
language which may serve as a textbook example of the application of the
________________________

39 Support for this approach may be found in Van den Berg 1948 2 SA 836 (T) 838; Stavast
1964 3 SA 617 (T) 621; John 1969 2 SA 560 (RA) 565–571.
40 1990 1 SA 32 (A) 39–41.
41 1983 3 SA 275 (A).
42 1990 1 SA 32 (A).
 THE DEFINITIONAL ELEMENTS 89

terminology of this theory (“According to human experience the shots . . . had

the general tendency in the normal course of events to bring about a gun-
wound”43 (translated and italics supplied)).
17 Multiple causes of same condition In order to find that a causal link was
present, it is unnecessary for a court to go so far as to find that X’s act was the
sole cause of the situation; it is sufficient to find that the act was a cause (pos-
sibly one of many) of the situation.
18 Causation and the doctrine of common purpose If X and Z (and per-
haps others together with them) acted with a common purpose to kill Y and
their common endeavour leads to Y’s death, they are liable for murder in terms
of the doctrine of common purpose (which will be discussed later).44 According
to this doctrine, each of them is guilty of murder despite the fact that there is no
causal link between the individual conduct of each of them and Y’s death.
(There is, of course, a causal link between their mutual conduct and Y’s death.)
19 Causation by an omission In the discussion of causation thus far the
question throughout has been whether a positive act was the cause of a certain
situation. It is settled that an omission to act, resulting in a certain situation,
may be punishable, as when a mother fails to feed her baby which then dies, or
where a railway crossing attendant fails to lower the boom when the train is
approaching and a motorist is then crushed by the train.
A person’s omission to act positively, resulting in a certain prohibited state of
affairs, is punishable only if that person has a legal duty to act positively. The
situations and cases in which there is such a legal duty according to our law,
were mentioned in the discussion above45 of omissions.
In applying the conditio sine qua non test to an omission, one must establish
whether the prohibited result would still have ensued if in place of X’s omission
there had been a positive act on his part, in accordance with his legal duty. Instead
of thinking away the act, one must imagine a positive act in the place of the
omission.46 The result is that strictly speaking, the enquiry into causation in
cases of omission does not entail determining a conditio sine qua non (condition
without which . . .), but a conditio cum qua non (condition with which . . .).
20 Subsequent conduct by the victim We now proceed to a discussion of
the courts’ treatment of certain concrete situations. It is convenient to divide
these situations into a number of categories, and to discuss them under the
following separate headings: Y’s subsequent conduct; that of a third party (Z);
that of X himself; extraordinary circumstances such as natural events; and cases
where Y had some abnormal physiological condition. Firstly, attention is paid
to cases where there was some subsequent conduct on the part of the victim
(Y).
________________________

43 Daniëls supra 332H. See also Counter 2003 1 SACR 143 (SCA) 153f–g: “. . . which led
directly to his wife’s death by stages entirely predictable and in accordance with human
experience.”
44 Infra VII B 7–16.
45 Supra II B 3, 4.
46 Van As 1967 4 SA 594 (A) 601;Van Heerden 2010 1 SACR 529 (EC).
90 CRIMINAL LAW

If X encourages Y to commit suicide, or provides him with the means of

doing so, and Y indeed commits suicide, the fact that the last act which led to
Y’s death was his (Y’s) own conscious and voluntary act does not mean that
the causal chain which X has set in motion has been broken; Y’s voluntary act
therefore does not constitute a novus actus.47 This conclusion is perfectly
compatible with the theory of adequate causation: as was pointed out above,48
the particular circumstances of which X was aware must, according to this
theory, also be considered when determining whether the act had the tendency
to bring about that kind of result.
Our courts have not yet held, as far as could be ascertained, that a person’s
refusal or omission to submit to medical treatment after being assaulted breaks
the causal chain. Where the wound is not of a serious nature (in other words,
where it will not lead to death regardless of whether medical treatment is given)
and Y unreasonably refuses medical treatment or advice, no causal link ought
to be found. It is submitted that a person’s refusal on religious grounds to
undergo or allow a blood transfusion which would undoubtedly save his life
must be regarded as conduct breaking the causal chain.
In Mokgethi49 X shot a bank teller (Y) in the back during a robbery, as a re-
sult of which Y became a paraplegic and was confined to a wheelchair. Y’s
condition improved to such an extent that he was later able to resume his work
at the bank. His doctor instructed him to shift his position in the wheelchair
regularly in order to prevent pressure sores from developing on his buttocks. He
failed to shift his position often enough, with the result that serious pressure
sores and accompanying septicaemia developed, causing his death. He died
more or less six months after he had been shot. The court held that X’s act was
not the legal cause of Y’s death. After an analysis of cases in which the vic-
tim’s failure precipitated the death, Van Heerden JA laid down the following
general criterion which could, according to him, be used in a number of situations
of this nature: X’s act which is a conditio sine qua non of Y’s death is normally
too remote from the result to lead to criminal liability (ie, to qualify as a legal
cause of Y’s death) if (i) the immediate cause of Y’s death was a failure on his
part to obtain medical or similar advice, to undergo treatment or to follow
instructions; (ii) the wounding itself was not lethal or, at least, no longer lethal
at that particular time; and (iii) the failure was relatively unreasonable, that is,
unreasonable also taking into account, for example, the victim’s characteristics
and convictions.50
21 Subsequent conduct of a third party If X assaults Y, who is then given
the wrong medical treatment, which leads directly to his death, the question
arises whether the medical treatment has interrupted the chain of causation. The
answer to this question usually depends on how serious the initial wound has
been and the degree of negligence or malfeasance on the part of the doctor or
________________________

47 Ex parte die Minister van Justisie: in re S v Grotjohn 1970 2 SA 355 (A); Agliotti 2011 2
SACR 437 (GSJ) par 21.
48 Supra par 12.
49 1990 1 SA 32 (A).
50 See 46J–47B.
 THE DEFINITIONAL ELEMENTS 91

medical staff. It is submitted that the following propositions are a fair reflection
of our law on this topic:
(1) If the injuries were of such a serious nature that Y would have died in any
event, despite correct medical treatment, then the fact that the treatment
was injudicious or negligent does not amount to a novus actus.
(2) If the injuries were not of such a serious nature and medical treatment was
given bona fide and with normal care, then the fact that it subsequently ap-
pears that the treatment was wrong, cannot operate in X’s favour: the caus-
al nexus is established.51 Doctors may sometimes differ among themselves,
and in an emergency a doctor must sometimes make a hasty decision which
may afterwards prove to be incorrect. Human experience tells us that medi-
cal science is not infallible.52
(3) If the injuries were not of such a serious nature as in (1) above and the
wrong medical treatment was given intentionally or in a grossly negligent
manner, the chain of causation is interrupted.53 To use the terminology of
the theory of adequate causation, one may say that one assumes or expects
that medical treatment will not be performed intentionally incorrectly (ie,
mala fide) or in a grossly negligent manner.
(4) What is the position if the injuries were of a serious nature and Y’s life
could have been saved by correct medical treatment, but the medical treat-
ment was improper or negligent? The answer to this question depends on
whether, at this time and in this country, one can expect medical treatment
always to be proper and proficient. It would seem that the answer to the lat-
ter question is negative, and that even in these cases the courts would not
automatically hold that the causal chain has been broken by the improper
medical treatment. For example, in Tembani54 the Supreme Court of Ap-
peal had to decide whether improper treatment of Y by hospital staff who
were overworked and understaffed (a scenario not uncommon in South Af-
rica), broke the causal chain. The court held that it did not. The court stated
that the deliberate infliction of an intrinsically dangerous wound, from
which Y is likely to die without medical intervention, must generally lead
to liability for an ensuing death. This rule applies even if the medical
treatment later given is substandard or negligent.55 It is submitted that the
decision in Tembani is correct. Although the approach adopted in this case
is hardly a compliment to the medical services in this country, it is a realis-
tic view which merely confirms what is already generally known. Quite
________________________

51 Dawood 1972 3 SA 825 (N) 828; Counter 2000 2 SACR 241 (T) 250; Ramosunya 2000 2
SACR 257 (T) 265d–f.
52 Carstens 2006 SACJ 192 203: “Not every medical slip, wrong diagnosis or mistake
imports negligence . . . Despite good intentions, things sometimes go amiss in surgical
operations or medical treatment.”
53 Du Plessis supra 645B; Counter 2000 2 SACR 241 (T) 250a–b; Jordan (1956) 49 Cr
App Rep 152. Note the following case in which there was no suggestion of incorrect
medical treatment: For a case in which there was no suggestion of any incorrect medical
treatment, see Williams 1986 4 SA 1188 (A).
54 2007 1 SACR 355 (SCA). For a penetrative discussion of this case and of the effects of
medical negligence on causation, see Carstens 2006 SACJ 192.
55 Par 25.
92 CRIMINAL LAW

apart from this, it seems unjust to allow X, who has intentionally inflicted a
lethal or at least very serious injury to Y, to argue afterwards that the sub-
sequent improper medical care should redound to his benefit and absolve
him from full responsibility for his deed. The court in Tembani added
obiter that even if the medical treatment was grossly negligent, it would
still not break the causal chain.56 It is submitted that this latter view goes
too far. Although medical services in South Africa are very strained and
not always up to standard, it seems incorrect to assume that in the normal
course of events one can expect medical services in this country that are
grossly negligent.
In Daniëls57 X twice shot Y in the back with a firearm, whereupon Y fell to the
ground. Although still alive, he would have died unless he received medical
treatment within about thirty minutes – something which was highly unlikely,
since the events took place on a lonely road in the countryside. X threw the
firearm onto the ground near Y. Shortly after Y fell to the ground, Z appeared
on the scene and shot Y through the ear. Of the five judges of appeal who heard
the appeal, two (Botha JA and Nicholas AJA) held that X and Z had acted with
a common purpose and that their joint conduct was therefore the cause of
death.58 According to the interpretation of the evidence by the other three
judges of appeal, however, X and Z had acted independently of each other.59
Not one of the judges doubted that Z’s act was a cause of the death. However,
the question that the last-mentioned three judges had to decide was whether
(assuming that X and Z had acted independently of each other) X’s act also
amounted to a cause of the death. Two of the three judges, namely Jansen JA
and Van Winsen AJA, held that there was indeed a causal link between X’s act
and Y’s death. According to these two judges policy considerations did not
demand that Z’s act qualify as a novus actus. Although Z’s act was the proxi-
mate cause of the death, causation in criminal law is not (according to these two
judges) based exclusively on the criterion of proximate cause.60 However,
Trengove JA, who was the third judge to find that X and Z had acted inde-
pendently of each other, was of the opinion that Z’s act was indeed a novus
actus which broke the chain of causation between X’s act and Y’s death.61
It is submitted that the judgment of Jansen JA (with which Van Winsen AJA
agreed) is to be preferred to that of Trengove JA. The two shots fired into Y’s
back by X would in any event have caused Y’s death,62 even had Z not also
fired a shot at Y, and, as Jansen JA quite correctly pointed out,63 human experi-
ence showed that X’s shots had the tendency, in the ordinary course of events,
to result in death.
________________________

56 Par 29.
57 1983 3 SA 275 (A).
58 304E (Nicholas AJA); 322F–G, 323C–D (Botha JA).
59 324B (Trengove JA); 306F–H, 314A–D (Van Winsen AJA); 330F–G (Jansen JA).
60 314A–D (Van Winsen AJA); 332–333 (Jansen JA).
61 325E–H.
62 Cf the remarks at 314A–B, 332H. If the wounds inflicted by X were not so serious that
they would in any event have led to Y’s death, Z’s conduct might well have amounted to
a novus actus – see 314D (per Van Winsen JA).
63 332H.
 THE DEFINITIONAL ELEMENTS 93

The conduct of a police official who intervenes in an armed robbery and, in

an attempt to prevent the robbery or to apprehend the robbers, fires a shot
which kills an innocent bystander, does not break the causal chain between the
acts of the robbers and the death of the bystander.64
22 X’s own subsequent conduct X, wanting to kill Y, assaults him, then,
thinking he is dead while he is in fact still alive, burns the supposed corpse. If
Y really dies as a result of the burning, X’s subsequent conduct is not regarded
as a novus actus.65 However, the two events must be so closely related to each
other as regards duration and method of performance that it may be said that for
all practical purposes they constitute one single transaction.66 The second act or
event is not a novus actus since it is not unusual, abnormal or unexpected for a
murderer to hide his victim’s corpse or to try and erase the evidence of his evil
deed. Both acts are performed by the same person with the same end in view.
23 Acts of nature, vis major, etc Although such cases have not yet figured
in our reported case law, there can be little doubt that if X assaults Y, and the
injured Y is then killed by a flash of lightning, a tsunami wave or a wild animal,
eventualities which X has not foreseen, the subsequent event is a novus actus.
The examples given are eventualities which general human experience does not
lead one to expect after an assault.
24 Abnormal physiological condition of victim It was pointed out above in
the discussion of the theory of adequate causation67 that, according to this
theory or test, any unusual physiological condition of Y, such as a thin skull or
a weak heart, must indeed be taken into consideration, and that where a person
with such physical qualities is assaulted there is a causal nexus between the
assault and the death, even though Y would not have died if he had not had
these exceptional qualities. Our courts have also accepted the principle that,
with regard to causation, Y’s particular physiological condition cannot operate
as a defence in X’s favour.68 This principle is sometimes expressed by the
maxim “you take your victim as you find him”.
25 Novus actus foreseen by perpetrator All the above rules relating to a
novus actus are subject to the qualification that if X planned the unusual turn of
events or foresaw it, it cannot amount to a novus actus.69 This accords with the
rule of the adequate causation test mentioned above70 that, in determining
________________________

64 Lungile 1999 2 SACR 597 (SCA) 605–606. Cf also Nhlapo 1981 2 SA 744 (A).
65 Masilela 1968 2 SA 558 (A); Thabo Meli [1954] 1 All ER 373 (PC).
66 If the two events cannot be regarded as one single transaction, X may escape liability,
since his assault (X’s first act in respect of Y) did not constitute a completed act of mur-
der, although it was accompanied by culpability, while the second act was, in turn, com-
mitted without culpability (because X was then under the impression that Y was already
dead and that he was therefore dealing with a corpse), although it constituted the com-
pleted act required for murder. In such a case X escapes liability because the act and the
culpability were not present contemporaneously. This requirement of contemporaneity is
discussed infra V A 7.
67 Supra par 12.
68 Du Plessis 1960 2 SA 642 (T); Ntuli 1962 4 SA 238 (W).
69 Grotjohn 1970 2 SA 355 (A) 364; Hibbert 1979 4 SA 717 (D) 722.
70 Supra par 12.
94 CRIMINAL LAW

whether an act tends to lead to a certain result, one should take into account not
only the circumstances ascertainable by the sensible person, but also the addi-
tional circumstances known to X.
 CHAPTER

IV

UNLAWFULNESS (JUSTIFICATION)

A THE CONCEPT OF UNLAWFULNESS

1 “Visible” and “invisible” requirements of liability A lay person would
probably be inclined to think that once the two requirements discussed in the
previous two chapters (namely conduct and compliance with the definitional
elements) have been complied with, nothing more is required in order to hold X
liable and convict him. However, somebody who is versed in the principles of
criminal law will know that there are still two very important further general re-
quirements of liability, namely unlawfulness and culpability, which must be
complied with before X can be held liable.
The reason why a lay person might not think of these two requirements is
because they are, as it were, “unwritten” or “invisible”: the contents of the
requirements of unlawfulness and culpability do not normally form part of the
“letter” or “visible part” of the legal rule or definition of the crime. More
particularly, the word “unlawful” does not normally even appear in the defini-
tion of a crime in a statute. Nor can one necessarily expect to find, in a statutory
definition of a crime, words such as “intentionally” or “negligently” that serve
as synonyms of the culpability requirement. Nevertheless, a court will not
convict X of a crime unless it is satisfied that the conduct complying with the
definitional elements was also unlawful and culpable – in other words, unless
these “unwritten” or “invisible” requirements have also been complied with.
2 Compliance with definitional elements and unlawfulness The mere fact
that there is an act which complies with the definitional elements does not mean
that the person who performs the act is liable for the particular crime. Satisfy-
ing the definitional elements is not the only general requirement for liability.
The next step in the determination of liability is to enquire whether the act
which complies with the definitional elements is also unlawful.
An act which complies with the definitional elements is not necessarily unlaw-
ful. This will immediately become clear if one considers the following examples:
(a) The definitional elements of murder read “the intentional killing of another
human being”. Nevertheless a person is not guilty if she kills somebody in
self-defence; her act is then justified and therefore not unlawful.
95
96 CRIMINAL LAW

(b) X inserts a knife into Y’s body. Although her act may satisfy the definitional
elements of assault, the act is justified and therefore not unlawful if X is a
medical doctor who is performing an operation on Y with Y’s permission,
in order to cure her of an ailment.
(c) X exceeds the speed limit while driving her motor car. Her conduct satis-
fies the definitional elements of the crime of exceeding the speed limit.
However, if she does so in order to get her gravely ill child to hospital for
emergency treatment, her conduct is justified and therefore not unlawful.1
There are many other examples of conduct which satisfies the definitional elem-
ents, but are nevertheless not unlawful. It is a common phenomenon that an act
which ostensibly falls within the letter of the law (in other words, which corre-
sponds to the definitional elements) proves upon closer scrutiny not to be con-
trary to the law, as the examples above illustrate. In these cases the law tolerates
the violation of the legal norm, because the law does not consist merely of
commands and prohibitions contained in the definitional elements, but also of
rules or criteria which in certain circumstances permit an act which is contrary
to such a command or prohibition. An act is unlawful if it is in conflict with the
rules or criteria of the legal order as a whole, and not merely with the particular
definitional elements.
3 Why the term “unlawfulness” may cause confusion The word “unlaw-
ful” is one of the most unfortunate and confusing terms used in the description
of criminal liability. It would be a good thing if one could dispense with this
term and replace it with a term such as “unjustified” or “lack of justification”,
but unfortunately the term “unlawful” is already too firmly embedded in our
legal language to be simply ignored and replaced by another.
The reason why the term “unlawful” may cause confusion is that the term can
easily be confused (as indeed it often is) with the quite distinct requirement that
the conduct must comply with the definitional elements. The word “unlawful”
creates the impression – especially in the eyes of a lay person – that it merely
means that the conduct must be contrary to the “(visible) letter” of the legal rule
in question – that is, the definitional elements. This, however, is not what the
word means. Whether the conduct is unlawful in fact constitutes an enquiry
distinct from the enquiry into whether there is compliance with the definitional
elements.
On the other hand these two enquiries are closely linked. The link is the fol-
lowing: The fact that an act complies with the definitional elements is a pointer
or sign that it may also be unlawful. If the act complies with the definitional
elements it can, in fact, be described as “provisionally unlawful” or “prima
facie unlawful”. However, it can be conclusively branded as unlawful only if it
is clear that it cannot be justified in terms of the criteria for unlawfulness which
will be discussed below.
4 Overcoming the confusion: “unlawful” means “unjustified” The con-
fusion may be overcome if one keeps in mind that the enquiry into “unlawful-
ness” is in fact an enquiry aimed at establishing whether there is an absence of
________________________

1 Pretorius 1975 2 SA 85 (SWA).

 UNLAWFULNESS (JUSTIFICATION) 97

something – namely justification for the conduct complying with the definitional
elements. The enquiry into whether conduct is unlawful therefore always bears
a negative character. Another way of overcoming possible confusion would be
by using the terms “unjustified” or “without justification” as synonyms for “un-
lawful”, because conduct complying with the definitional elements is unlawful
if it cannot be justified.
5 Unlawfulness and wrongdoing “Wrongdoing” is the umbrella concept
which comprises both the requirement of compliance with the definitional elem-
ents and unlawfulness; put differently, it is the unlawful fulfilment of the defin-
itional elements of the crime.
6 Act is either lawful or unlawful The concept of unlawfulness embraces a
negative or disapproving judgment by the legal order of the act. The law either
approves or disapproves of the act. An act is therefore either lawful or unlawful.
There is no third possibility: unlawfulness cannot be graded.2 Furthermore, only
human conduct can be unlawful. Acts or events such as a hurricane, a flood or
an attack by an animal cannot be unlawful. “Unlawful” is an adjective, the noun
of which is always a voluntary human act or omission.
7 Grounds of justification The next important question which arises is:
When is conduct which corresponds to the definitional elements nevertheless
not unlawful?
There are a number of cases or situations, well known in daily practice,
where an act which corresponds to the definitional elements is nevertheless not
regarded as unlawful. Unlawfulness is excluded because of the presence of
grounds of justification. Some well-known grounds of justification are private
defence (which includes self-defence), necessity, consent and official capacity.
Later in this chapter the grounds of justification will be discussed one by one.
At this point it is tempting to define unlawfulness simply as “the absence of a
ground of justification”. However, such a purely negative definition of unlawful-
ness is not acceptable, for two reasons in particular. Firstly, all writers on crim-
inal law agree that there is not a limited number (numerus clausus) of grounds
of justification. If there is not, how is one to determine the lawfulness or unlaw-
fulness of conduct which does not fall within the ambit of one of the familiar
grounds of justification? Secondly, it should be remembered that each ground
of justification has its limits. Where an act exceeds these limits it is unlawful.
What is the criterion for determining the limits of the grounds of justification?
8 “Unlawful” means “contrary to the community’s perception of justice or
the legal convictions of the community” Writers on criminal law have pro-
posed different criteria to determine the material contents of unlawfulness.3
________________________

2 Maurach-Zipf ch 24 par 16; Van der Westhuizen 425.

3 On the material contents of unlawfulness, see I 1976 1 SA 781 (RA) 788–789; Clarke v
Hurst 1992 4 SA 630 (D) 652–653; Fourie 2001 2 SACR 674 (C); Van der Westhuizen
371 ff, especially 452–496; Van der Westhuizen 1984 De Jure 369 373–378; Bertels-
mann 1982 THRHR 412 414 ff; Robinson (1982) 82 Columbia Law Review 82, especially
203, 213–219; Jescheck and Weigend 233 ff; Schönke-Schröder n 45–50 ad s 13;
Maurach-Zipf ch 24 par 20 ff; Roxin 596 ff; Hazewinkel-Suringa-Remmelink 343 ff; Eser
in Eser and Fletcher 1 47–50; the articles by Hassemer, Roxin and Lenckner in Eser and
Fletcher 1 175 ff, 230 ff and 493 ff.
98 CRIMINAL LAW

Among the criteria suggested are that unlawfulness consists of the following: a
violation of certain legally protected interests or values; conduct which does not
accord with the boni mores (literally “good morals”); conduct which violates
the community’s perception of justice or equity; conduct which is at variance
with public or legal policy; conduct which is contrary to the legal notions or the
legal convictions of society; conduct which is contrary to the requirement of
objective reasonableness; conduct which causes more harm than benefit; or con-
duct which is not “socially adequate”.
Most of the above viewpoints are reconcilable. Whether one speaks of the
one or the other is a matter of a choice of words rather than the description of
conflicting viewpoints. It is submitted that the most acceptable viewpoint is the
one according to which unlawfulness consists in conduct which is contrary to
the community’s perception of justice or with the legal convictions of society.4
It is, of course, a vague criterion, yet the same objection can be lodged against
all the other criteria mentioned above. It is simply impossible to formulate such
a general concept or criterion in more concrete terms.
The contents of the Bill of Rights in chapter 2 of the Constitution must obvi-
ously play an important role in deciding whether conduct is in conflict with
public policy or the community’s perception of justice and therefore unlawful.
The values reflected in the Constitution, such as “human dignity, the achieve-
ment of equality and the advancement of human rights and freedoms”5 are of
crucial importance in deciding this issue.6
Society’s or an individual’s legal and moral convictions often coincide, but
not always. What must be considered when deciding whether conduct is unlaw-
ful are not moral convictions, but legal convictions.
One must always first establish whether an act which accords with the defin-
itional elements is not perhaps justified because the legal convictions of society
deem the act, committed in those particular circumstances, in fact to be lawful.
The act is then not unlawful. The grounds of justification must be seen as prac-
tical aids in the determination of unlawfulness. They merely represent the situ-
ations which are most often encountered in practice and which have therefore
come to be known as easily recognisable grounds for the exclusion of unlawful-
ness. They do not cover the whole field of the subject of this discussion, namely
the demarcation of lawful and unlawful conduct.
The following is an imaginary example of a situation where X’s act, which at
first sight seems to “break the law”, is in fact not unlawful, despite the fact that it
does not fall under one of the recognised grounds of justification (which will be
discussed below): X is the owner of an attractive guest house next to a tarred
road. The success of her business depends upon the travelling public being able
to reach her property via the tarred road. Over the years the provincial authori-
ties responsible for keeping the road in good repair neglect their duties, with the
result that the road becomes near to impassable. X’s complains and asks the

________________________

4 I 1976 1 SA 781 (RA) 788; Robson 1991 3 SA 322 (W) 333E; Clarke v Hurst supra
653B, 659B–C; Fourie supra 681a–b; Engelbrecht 2005 2 SACR 41 (W) 54b, 106a.
5 See s 1 of the Constitution, Act 108 of 1996.
6 Engelbrecht 2005 2 SACR 41 (W) par 332.
 UNLAWFULNESS (JUSTIFICATION) 99

authorities to repair the road, but the request falls on deaf ears. At last she and
people in her employ break the existing pieces of tar, remove them and retar the
impassable piece or road. As a result of her actions she is charged with the
crime of malicious injury to property, in that she has destroyed parts of the road
belonging to the provincial authority. She can then successfully rely on a plea
that her conduct was lawful. It accorded with the community’s perception of
justice or the legal convictions of the community. It caused more benefit to
society than any conceivable harm, and was therefore “socially adequate”.
9 “Unlawful” does not mean “contrary to definitional elements of the
crime” It was emphasized above that the mere fact that the act accords with
the definitional elements does not necessarily mean that it is also unlawful. It is
therefore incorrect to define unlawfulness merely as an infringement of a
criminal-law provision or as compliance with the definition of the crime. Such
a statement confuses the unlawfulness with the definitional elements.
The definitional elements contain no references to grounds of justification. If
the legislature creates a crime, it usually merely stipulates that any person who
commits a certain type of act in certain circumstances (such as possessing a
certain type of drug without permission, driving a vehicle recklessly on a public
road, or pointing a firearm at somebody else) commits a crime. Normally the
legislature does not add words such as “unless the accused acted in self-
defence, necessity, an official capacity or in obedience to orders”. Nevertheless
it is generally recognized that no court will convict X of such statutory offences
if she in fact acted in private defence (which includes self-defence) in a situa-
tion of emergency (necessity) or in an official capacity – to mention just some
of the recognised grounds of justification. Why would a court not convict X in
these circumstances? After all, her conduct falls within the description of the
conduct proscribed in the statute. The reason is that the court is not bound to
consider exclusively the requirements contained in the “letter of the law”, but
also applies rules or principles that go beyond the definitional elements or
“letter of the law”. These rules relate to unlawfulness, for the concept of un-
lawfulness is based upon values which go beyond the rules or requirements
expressed in the definitional elements.
Conduct which is, according to general notions of society, completely accept-
able, does not require any justification. That which is justified must necessarily
be conduct which is recognisable as a violation of a norm. One can identify the
violation of a norm by having regard to the definitional elements of the appli-
cable crime.
10 Subjective considerations also relevant in establishing unlawfulness It
is sometimes alleged in South African legal literature that the test to determine
unlawfulness is objective and that X’s intention therefore does not come into
the picture when determining unlawfulness (or wrongdoing).7 This view is in-
correct. It was pointed out above8 that X’s will (colourless intention) forms part
of the definitional elements; the latter comprises both objective and subjective
________________________

7 Goliath 1972 3 SA 1 (A) 11B–C; Ex parte Minister van Justisie: in re S v SAUK 1992 4
SA 804 (A) 808F–G.
8 Supra III A 7–8.
100 CRIMINAL LAW

factors. The concept of unlawfulness is an evaluation of the act which corre-

sponds to the definitional elements. Since the latter contains both objective and
subjective elements, it follows that the former must also be coloured by subjec-
tive factors. In order to determine whether an act is unlawful, it is necessary not
merely to establish that, viewed from the outside (ie, objectively), the act is in
conflict with the legal order, but also to consider X’s will or intention.
The presence of subjective factors in wrongdoing (unlawful act) is evidenced
not merely by their presence in the definitional elements, but also by the subject-
ive factors which must be taken into consideration in order to determine whether
there is a ground of justification. A person who relies on a ground of justifi-
cation must be aware of the circumstances which render her conduct lawful.
She must consciously act lawfully. If the circumstances justifying her conduct
are objectively present but she is not subjectively conscious of their existence,
and her conduct is aimed at acting outside the justificatory circumstances, her
conduct is unlawful. In short, X’s act is justified not merely by objective, but
also by subjective factors.9
11 Difference between unlawfulness and culpability From the foregoing it is
clear that to describe unlawfulness as “objective” and culpability as “subjective”
is misleading and confusing. If one must employ the sometimes ambiguous

________________________

9 Fletcher 557: “The consensus of Western legal systems is that actors may avail them-
selves of justifications only if they act with a justificatory intent”; 564: “the act of ‘exer-
cising’ or ‘acting under’ a privilege [a ground of justification] presupposes knowledge of
the justifying circumstances”. See also Wessels ch 8 par 275–280; Maurach-Zipf ch 25
par 24 ff; Roxin ch 14 par 94–97; Jescheck 294 ff; Mousourakis 1998 Stell LR 165 173.
The following examples illustrate this principle:
(a) Y, a medical doctor, on the pretext that this amounts to necessary medical treatment,
decides to murder X by injecting air into her veins. Just as Y is about to insert the
point of the needle into X’s body, X, who is unaware of Y’s intention, decides to as-
sault Y. Only afterwards does X discover that if she had not assaulted Y at that par-
ticular moment, Y would have killed her. In such a case X’s conduct is unlawful; on
a charge of assault she cannot rely on private defence as a justification for her con-
duct. She had no intention of defending herself against an unlawful assault. There is
no such thing as unconscious, fortuitous or accidental private defence. X must there-
fore intend to act in private defence. See infra IV B 4 (d) and the authorities referred
to there.
(b) A person who relies on necessity as a ground of justification must be conscious of the
fact that an emergency exists, and that she is therefore acting in necessity. If X
throws a brick through the window of Y’s house in order to break into it, and it later
transpires that by so doing she has saved Y and her family, who were sleeping in a
room filled with poisonous gas, from certain death, X cannot rely on necessity as a
defence. See infra IV C 6 ( f ) and the authorities referred to there.
(c) The reason why the person who acts on the grounds of presumed consent (spontane-
ous agent or negotiorum gestor) does not act unlawfully is to be found in her inten-
tion. Eg X moves her neighbour Y’s furniture to her own house, without Y’s consent.
This would normally be theft, but if X moves the furniture in order to save it from
flood waters which are threatening Y’s house while she is away on holiday, her con-
duct is lawful. See infra IV E 3.
(d) In I 1976 1 SA 781 (RA) the court held that to peep through a window at somebody
else undressing, is not unlawful if it is done with the sole and bona fide intention of
obtaining evidence of adultery, in order to use such evidence in a later suit of divorce.
 UNLAWFULNESS (JUSTIFICATION) 101

terms “objective” and “subjective” in describing the difference between un-

lawfulness and culpability, the difference, in my opinion, is best described as
follows: Unlawfulness is “objective” in the sense that the act is judged in accor-
dance with a generally applied criterion, namely the legal provisions which are
directed at all people on an equal basis, that is, without differentiating between,
for example, children, adults, mentally disordered people, mentally healthy
people, blind people and mute people. On the other hand, what is judged ac-
cording to this objective (generally applicable) criterion, namely the human act
corresponding to the definitional elements, contains both external (objective)
and internal (subjective) factors.
Furthermore, as far as the general criterion for unlawfulness is concerned, it
must be remembered that just as an ambulance’s screaming siren is addressed
to everybody, even though some people may be deaf, or mentally disordered, or
be children, so the provisions of the law apply to all persons regardless of their
individual characteristics. This is the reason why it is equally unlawful for a rich
and a poor person to commit theft, and why it is just as unlawful for a psycho-
path who finds it very difficult to restrain his sexual desires as it is for a normal
person to commit a sexual crime. All acts, no matter by whom committed,
which are contrary to the material content of the law are therefore unlawful.
This means that even children and mentally disordered persons act unlawfully
if their conduct is contrary to the law.10 It is only when one comes to the ques-
tion of culpability that attention is paid to the perpetrator as a person; to her
individual aptitudes, talents, weaknesses and insight.11 In short, unlawfulness
may be described as a judgment or an evaluation of the act, and culpability as a
judgment or evaluation of the perpetrator.
12 Erroneous belief in the existence of ground of justification: conduct
remains unlawful The subjective factors which have to be taken into con-
sideration when deciding whether an act is lawful were emphasised above. How-
ever, just as it is wrong to see unlawfulness as consisting of merely objective
(“external”) factors, it is similarly wrong to place all the emphasis on subjective
factors and to forget about the objective ones. No ground of justification can
exist in the absence of objective factors, and for this reason X’s conduct re-
mains unlawful if she subjectively thinks that there is a ground of justification
whereas in fact there is none. A so-called “putative ground of justification” is
therefore in fact no ground of justification. A putative ground of justification is
one that does not legally exist but which X wrongly believes to exist. It “exists”
in X’s imagination only. X mistakenly believes that her conduct is covered by a
ground of justification.
The following example illustrates this principle: Y wants to play a practical
joke on X and aims a toy pistol at her. X thinks that Y is threatening her with a
________________________

10 Williams Textbook 502; Jescheck and Weigend 236–238; Van der Westhuizen 422.
11 Fletcher 458, 761–762: “Claims of justification lend themselves to universalisation. That
the doing is objectively right (or at least not wrongful) means that anyone is licensed to
do it . . . Excuses, in contrast, are always personal to the actor”. See also Le Roux 1996
Obiter 247 256; Jesheck and Weigend 244; Schönke-Schröder n 48 ad s 13; Eser in Eser
and Fletcher 1 26 ff, especially 61; Robinson 1982 Columbia Law Review 199 203, 213;
Fletcher 1985 Harvard Law Review 949; Fletcher 1974 Southern California Law Review
1269 1305.
102 CRIMINAL LAW

real pistol and in turn fires at Y, killing her. X’s act is unlawful because there is
no unlawful attack upon her. She can, however, rely on mistake (absence of
intention) as a defence.
13 Proving unlawfulness: onus of proof In terms of the rules relating to the
law of evidence the state (prosecution) bears the onus of proving beyond reason-
able doubt that X’s conduct not only corresponded to the definitional elements,
but also that it was unlawful. This means that if in the course of a trial the
question arises whether X’s conduct is covered by a ground of justification the
onus is on the state to prove that her conduct cannot be justified.

B PRIVATE DEFENCE

1 Definition A person acts in private defence, and her act is therefore

lawful, if she uses force to repel an unlawful attack which has commenced,
or is imminently threatening, upon her or somebody else’s life, bodily in-
tegrity, property or other interest which deserves to be protected, provided
the defensive act is necessary to protect the interest threatened, is directed
against the attacker, and is reasonably proportionate to the attack.12

2 General The first ground of justification, private defence, has ancient roots.
It can rightly be alleged that this ground of justification has no history, because
it exists from the beginning of time. In the course of history it has therefore not
gained its place, but merely maintained it. Natural justice dictates that every per-
son has a right to defend herself against an unlawful attack.13 In daily parlance
this ground of justification is often referred to as “self-defence”, but this de-
scription is too narrow, since it is not only persons who defend themselves but
also those who defend others who can rely upon this ground of justification.
There are two rationes or theories for the existence of private defence. The
first is the protection theory, which emphasises each person’s right to defend
oneself or another against an unlawful attack. The second is the upholding-of-
justice theory.14 The idea underlying this theory is that people acting in private
defence perform acts whereby they assist in upholding the legal order. Private
defence is meant to prevent justice from yielding to injustice, because private
defence comes into play only in situations in which there is an unlawful attack.
In the primitive societies of the past, where there was no organised police force
to uphold the law, the right to private defence played a very important role. On
the emergence of an organised state authority the field of operation of private
defence became more restricted, so that today it can only be applied in certain
defined circumstances. It stands to reason that it is impossible for the state
authorities to protect the individual at all times against unlawful attack, and for
that reason every individual today still has the right to “take the law into her own

________________________

12 Engelbrecht 2005 2 SACR 41 (W) par 228; Steyn 2010 1 SACR 411 (SCA) par 16.
13 D 9 2 4; D 9.2.45.4; D 16.1 27. This right is also explicitly recognised in s 2(2) of the
European Convention of Human Rights as well as s 51 of the Charter of the United
Nations.
14 On the two rationes underlying private defence, see Snyman 2004 SACJ 178.
 UNLAWFULNESS (JUSTIFICATION) 103

hands”, so to speak, in private defence, and temporarily to act on behalf of the

state authority in order to uphold the law.15
For the purposes of classification of the requirements of the defence it is con-
venient to divide the requirements of private defence into two groups. The first
comprises the requirements with which the attack, against which a person acts
in private defence, must comply; the second, the requirements with which the
defence must comply.
3 Requirements of the attack
(a) The attack must be unlawful 16 A person cannot act in private defence
against lawful conduct. For this reason a person acts unlawfully if she attacks a
police officer who is authorised to arrest a person or is authorised by a warrant
to search a house. If the police officer is not authorised by law to perform a
particular act, or if she exceeds the limits of her authority, she may be resisted.17
Private defence against private defence is not possible, but private defence
against an act in which the limits of private defence are exceeded is possible,
because the latter act is then unlawful. For example, X assaults Y lightly by
trampling on her (Y’s) foot. Y reacts by attacking X with an axe. Since Y’s act
is out of proportion to Y’s initial attack on her, her (Y’s) act is unlawful. X may
then act in private defence against this attack. X may therefore rely on private
defence even if she (X) was the original aggressor.
X cannot rely on private defence is she kills Y in the course of a pre-arranged
duel. An example of such a case is Jansen.18 X and Y decided to settle their
differences by a knife duel. During the fight Y first stabbed X, and then X
stabbed Y in the heart, killing him. The court held, quite correctly, that X could
not rely on private defence, and convicted him of murder. X’s averting of the
blow was merely part of the execution of an unlawful attack which he had
planned beforehand.
An unlawful attack presupposes a voluntary human act. Involuntary muscular
movements by Y therefore do not qualify as an unlawful attack. If X directs her
attack against human conduct which is involuntary, as where Y walks in her
sleep, she does not act in private defence, but may rely on the ground of justifi-
cation known as necessity.
As the law does not address itself to animals, and animals are therefore not
subject to the law, they cannot act unlawfully. Therefore a person does not act
in private defence if she defends herself against an attack by an animal, but here
she can rely on the ground of justification known as necessity.19 If, on the other
________________________

15 Engelbrecht 2005 2 SACR 41 (W) par 350, discussed by Grant 2007 SACJ 1
16 Goliath 1972 3 SA 1 (A) 10; Kibi 1978 4 SA 173 (E) 180; Snyders v Louw 2009 2 SACR
463 (C) 469-470.
17 Moloy 1953 3 SA 659 (T) 661; Folkus 1954 3 SA 442 (SWA) 445.
18 1983 3 SA 534 (NC).
19 Infra IV C. In Nkhumeleni 1986 3 SA 105 (V) it was held that if X assaults Y, and Y’s
dog spontaneously comes to his master’s assistance and attacks X, the dog’s conduct, like
that of its master, is lawful and X cannot then claim that his stabbing of the dog (in order
to defend himself) was justified by necessity. It would perhaps have been more correct to
say that the dog’s conduct was merely an extension of his master’s lawful conduct, or an
instrument in his hands.
104 CRIMINAL LAW

hand, a person uses an animal as an instrument of attack, the person defending

herself does act in private defence, because here there is an unlawful attack by a
human being.
There are three conditions with which the requirement presently under dis-
cussion need not comply. They are the following:
Firstly, the assault need not be committed culpably. It is therefore also pos-
sible to act in private defence against somebody who lacks criminal capacity,20
such as a mentally disordered person,21 a child, or somebody who acts in error.
For example, Y arrests X, while under the impression that she is entitled to do
so. Y is in fact not entitled to do so. Y’s act, although not committed culpably,
is unlawful and X can act in private defence against it.
Secondly, the attack need not be directed at the defender. X may equally act in
private defence to protect a third person Z (somebody other than the attacker),
even if there is no family or protective relationship between X and Z.22 How-
ever, there is no private defence if Z does not wish to be helped and this wish of
hers is recognisable to X.23
Thirdly, the attack need not necessarily consist in a positive act (commissio),
although in fact it nearly always does. Although unlikely to occur often, an
omission (omissio) ought also to qualify as an “attack”, provided the other
requirements of private defence are present. An example in this respect is that
of the convict who assaults prison warders and escapes when her term of
imprisonment has expired but she has not been released.
In Engelbrecht,24 a case in which X alleged that she had killed Y in private
defence, the trial judge held that Y’s attack need not necessarily be physical in
nature, but that it may also take the form of psychological and emotional abuse,
as when a wife is emotionally harassed by her husband over a prolonged period
of time. However, the two assessors in this case did not agree with the judge
that X, who had killed her husband after being abused by him for a long time,
acted in private defence. It is submitted that the trial judge in this case bent the
rules of private defence too far, that her interpretation of the law was incorrect
and that the assessors’ view of the matter was correct. To view, in the words of
the trial judge, “emotional abuse, degradation of life, diminution of dignity and
threats to commit any such acts” by Y as an unlawful attack, giving X the right
to kill Y, will result in the rules relating to private defence becoming too vague,
and lead to misuse of private defence as a ground of justification. It is submit-
ted that the legal convictions of society do not allow a wife who is abused by
her husband (as happened in this case) to smother her husband with a plastic
________________________

20 Goliath 1972 3 SA 1 (A) 30A.

21 K 1956 3 SA 353 (A).
22 Patel 1959 3 SA 121 (A) 123; Mokoena 1976 4 SA 162 (O) 163.
23 Schönke-Schröder n 25 ad s 32; Maurach-Zipf ch 26 pars 50–54. Care should be taken
not to deprive private defence of its character by granting every individual the right to
play policeman. Thus one cannot by acting in private defence protect society as a whole.
The self-appointed protector of morals who arrogates to herself the right to confiscate
“immoral” magazines in order to “protect” others who may read them cannot rely on pri-
vate defence.
24 2005 2 SACR 41 (W) par 344.
 UNLAWFULNESS (JUSTIFICATION) 105

bag while he was sleeping – especially not if the evidence shows (as the assess-
ors indeed found) that there were other less lethal ways in which X could have
escaped Y’s abuse.
(b) The attack must be directed at an interest which legally deserves to be
protected Most often a person acts in private defence in protection of her life
or bodily integrity, but in principle there is no reason why X cannot act in
private defence in protection of other legal interests as well. The courts have
accordingly recognised private defence in protection of property,25 dignity,26
freedom of movement (prevention of unlawful arrest),27 the private use of one’s
own property (prevention of trespassing onto property),28 and sexual integrity
(prevention of rape),29 as well as private defence in order to prevent arson30 or
crimen iniuria,31 but not private defence against an attempt to gain access to
and control of a child who was in the custody of a divorced parent.32
(c) The attack must be imminent but not yet completed 33 X may not attack Y
merely because she expects Y to attack her at some time in the future. She may
attack Y only if there is an attack or immediate threat of attack by Y against
her; in this case it is, of course, not necessary for her to wait for Y’s first blow –
she may defend herself by attacking Y, with the precise object of averting that
first blow.34
Private defence is not a means of exercising vengeance, neither is it a form of
punishment. For this reason X acts unlawfully if she attacks Y when Y’s attack
upon her is already something of the past.35
________________________

25 Ex parte die Minister van Justisie: in re S v Van Wyk 1967 1 SA 488 (A) (in later foot-
notes reference to this important case will simply be to “Van Wyk”); Texeira 1980 3 SA
755 (A) 765A; Mogohlwane 1982 2 SA 587 (T).
26 Van Vuuren 1961 3 SA 305 (E).
27 Kleyn 1927 CPD 288; Karvie 1945 TPD 159.
28 Thomas 1928 EDL 401; Botes 1966 3 SA 606 (O).
29 Mokoena 1976 4 SA 162 (O), and cf Van Wyk supra 497A–B.
30 Cf Van Wyk supra 496E, 498A, 504A.
31 Cf Ndalangisa 1969 4 SA 324 (E).
32 Kamffer 1965 3 SA 96 (T) 100. It is submitted that the trial judge in Engelbrecht 2005 2
SACR 41 (W) par 345 went too far when she declared that even “quality of life, her
home, her emotional and psychological wellbeing, her freedom as well as those interests
of her child(ren)” are protected by the right to private defence. In protection of, among
others, these interests, X had killed her husband. For more particulars of this case, see the
text supra par 3(a).
33 Van Wyk 1967 1 SA 488 (A) 504E–F; Mokgiba 1999 1 SACR 534 (O) 550; Govender v
Minister of Safety and Security 2009 2 SACR 87 (D&C).
34 Ngubane v Chief Executive Director of Emergence Services, Ethekwini Metropolitan
Services 2013 1 SACR 48 (KZD) par 29.
35 Mogohlwane 1982 2 SA 587 (T). It is submitted that the court in Engelbrecht 2005 2
SACR 41 (W) par 349 went too far when it declared that “where abuse [by Y, the hus-
band, on his wife, X] is frequent and regular such that it can be termed a ‘pattern’ or a
‘cycle’ of abuse then it would seem that the requirement of ‘imminence’ should extend to
encompass abuse which is ‘inevitable’”. In this case X killed her husband Y by smother-
ing him with a plastic bag while he was sleeping, after she had suffered abuse from him
for some time. It is submitted that Y’s abuse of X cannot be construed as an immediate
threat upon X, giving X the right to kill him, especially in view of the fact that (as the two
assessors indeed found) the evidence showed that there were other less harmful ways in
which X could have escaped the abuse.
106 CRIMINAL LAW

When automatic defence mechanisms are set up (such as a shotgun which is

rigged in such a way that it will go off in a shop during the night if a thief
enters it), there is not yet a threatened attack at the time when they are set up,
but the law recognises that to set up and trigger such mechanisms may consti-
tute valid private defence in certain narrowly defined circumstances.36 Their
setting up must be viewed as a precautionary measure or as a preparation for an
act of defence. The latter only takes place when the thief sets foot in the trap.
4 Requirements of the defence
(a) It must be directed against the attacker If Y attacks X, X cannot then
direct her act in private defence against Z. However, an attack on Z by X may
in certain circumstances be justified by necessity, as will be explained below.37
(b) The defensive act must be necessary in order to protect the interest threat-
ened. The execution of the defensive act must be the only way in which the
attacked party can avert the threat to her rights or interests. If, on the termin-
ation of a lease, the obstinate lessee refuses to leave the house, the lessor is not
entitled to seize her by the throat and eject her from the premises. She can
protect her right and interests by availing herself of the ordinary legal remedies,
which are to obtain an ejection order from a court and possibly also to claim
damages. The basic idea underlying private defence is that a person is allowed
to “take the law into her own hands”, as it were, only if the ordinary legal
remedies do not afford her effective protection.38 She is not allowed to arrogate
to herself the functions of a judge and a sheriff. On the other hand, a threatened
person need not acquiesce merely because she will be able to claim damages
afterwards. The present rule merely means that the threatened person may not
summarily take the law into her own hands if the usual legal remedies afford
her adequate protection.
Excursus: Is there a duty to flee? A question that arises in this connection is
whether the person who is being attacked must flee if she can do so in order to
ward off the attack. Thus far the courts have not yet unequivocally decided
whether or not such a duty to flee exists. There are a number of instances in
which it can with reasonable certainty be accepted that there is no duty on the
attacked party (X) to flee. These instances are the following:
Firstly, it would seem that if X can ward off the attack by merely injuring Y
instead of killing her, she may do so. It is only in cases where X kills Y that
there is uncertainty in our law whether or not there is a duty on X to flee.39
Secondly, our courts recognise the principle that if it is dangerous for X to
flee in the sense that she would then expose herself to, for example, a stab or a
shot in the back, she need not flee, but may act pro-actively and put her attacker
out of action.40 The law does not expect a person to gamble with her life by
________________________

36 Van Wyk supra 498.

37 Infra IV C.
38 Engelbrecht 2005 2 SACR 41 (W) par 351.
39 La Fave 547–548: “It seems everywhere agreed that one who can safely retreat need not
do so before using non-deadly force.”
40 Zikalala 1953 2 SA 568 (A) 573; Texeira 1980 3 SA 755 (A) 765 (C); Ntsomi v Minister
of Law and Order 1990 1 SA 512 (C) 527; Mothoana 1992 2 SACR 383 (O) 385;
Snyders v Louw 2009 2 SACR 463 (C) par 25; Steyn 2010 2 SACR 411 (SCA) par 24.
 UNLAWFULNESS (JUSTIFICATION) 107

turning her back on her attacker and merely hoping that she will not be hit by a
bullet or be stabbed in the back with a knife by the attacker.41 It is the attacker,
who unlawfully and intentionally launches the attack, who carries the risk of
injury or death, and not the attacked party.
Thirdly, the law does not expect X to flee from her own house if she is
attacked there.42 Her house or place of residence is her last refuge – her “castle”
– where she may protect herself against any unlawful attack.
Fourthly, it is not expected of a law enforcement officer, such as a police
officer, to flee if she is being attacked while lawfully performing her duties.43
Fifthly, there is much to be said for the view that if X is attacked by a person
lacking criminal capacity (such as a mentally ill person, a child or an extremely
intoxicated person), and she can escape danger by fleeing, she should do so,
because in such cases it is not disgraceful to flee, and the maintenance of law is
not thereby endangered.44
However, the question arises whether X should flee from her attacker in cases
not falling under one of the above-mentioned categories, such as when X is
attacked by Y when both she and Y find themselves in a narrow alley and both
of them carry weapons.
Although the courts have not yet unequivocally held that in such circum-
stances there is indeed a duty on X to flee, there are indications in our case law
that create the impression that the courts in fact expect her to flee.45
________________________

41 This view was endorsed by the Supreme Court of Appeal in Steyn 2010 1 SACR 411
(SCA) par 21. See also Hoctor 2010 SACJ 125 127 in his discussion of this judgment,
and Ngubane v Chief Executive Director of Emergency Services, Ethekwini Metropolitan
Services 2013 1 SACR 48 (KZD) par 27.
42 Engelbrecht 2005 2 SACR 41 (W) par 354; S 3.04(2)(b)(iii) of the American Model
Penal Code.
43 Ntsomi v Minister of Law and Order supra 528 530.
44 Snyman 2004 SACJ 178 186; Jescheck and Weigend 341.
45 Zikalala 1953 2 SA 568 (A) 571–572; K 1956 3 SA 353 (A) 358H; Patel 1959 3 SA 121
(A) 123F; Mnguni 1966 3 SA 776 (T) 779A; Dougherty 2003 2 SACR 36 (W) 50. The
latter decision is completely incorrect. It was a classic case of private defence, and the
court should have upheld X’s plea of private defence. Had X not shot Y, Y and his co-
perpetrator would, in all probability, have overpowered and killed X. To expect of X, as
the court apparently did, to turn his back on his attackers and run away, amounts to the
court expecting of X to gamble with his life. X was one man alone against two attackers.
X was no longer young (he was 63), while Y and his co-perpetrator were about 31 and 25
years of age. They had already shortly before attacked some of the other people at X’s
party, and they did not approach X with any peaceable motive. When they came close to
X, he acted entirely reasonably by first firing a warning shot. It was only when Y was
approximately 3,5 metres from X that X shot him. It would seem that the court was
grasping at straws in an attempt to find reasons why X should not have shot Y, such as
the far-fetched argument that X was not a trained shot, and did not yet have any training
in the use of firearms (44b). Since when may only people trained in the use of firearms
defend themselves in private defence? And what did Y’s clothing, that is, the fact that Y
was not wearing a shirt (50b) have to do with the question whether X was entitled to
shoot Y in private defence? For an analysis and scathing criticism of this decision, see
Snyman 2004 THRHR 325. An aspect of Snyman’s criticism of this decision was quoted
with approval in Engelbrecht 2005 2 SACR 41 (W) par 329, and described as “con-
vincing”. The decision in Engelbrecht can in fact be construed as one in which it was
held that there was no duty on X to flee. See in particular pars 354–355.
108 CRIMINAL LAW

It is submitted that there is no duty on the attacked party to flee.46 To recog-

nise a duty to flee is to deny the very essence of the present defence. Private
defence deals with the defence of the legal order, that is, the upholding of just-
ice. Fleeing is no defence; it is a capitulation to injustice. Why must justice yield
to injustice? In private defence the attacked party (X) acts as upholder of the
law, since the state authority (police) is not present to protect her. Just as there
is no duty on a police officer to run away from a criminal, there is no duty on X
to flee from a person (Y) who unlawfully attacks her in circumstances where the
police are not present to protect her. A legal system such as ours, that expects of
its subjects to respect and promote the rule of law, cannot simultaneously expect
of them to flee from an unlawful attack, since that would amount to expecting
of them to turn their backs on the rule of law in order to let the rule of injustice
carry the day. German criminal law theory, in which the concept of private
defence has been analysed in depth, does not recognise any duty on X to flee.47
Modern authors on Anglo-American law likewise criticise the recognition of
any duty to flee.48
(c) There must be a reasonable relationship between the attack and the de-
fensive act It stands to reason that there ought to be a certain balance between
the attack and the defence. After all, you may not shoot and kill another person
who strikes you with only a fly-swatter. It is not feasible to formulate the nature
of the relationship which must exist between the attack and the defence in
precise, abstract terms. Whether this requirement for private defence has been
complied with is in practice more a question of fact than of law.49
A clearer picture of this requirement emerges if one considers the elements
between which there need not be a proportional relationship:
Firstly, there need not be a proportional relationship between the nature of
the interest threatened and the nature of the interest impaired.50 The attacked
party may impair an interest of the assailant which differs in nature from that
which she is defending. The following examples illustrate this point: If Y
threatens to deprive X of a possession belonging to X, X is entitled to assault Y
in private defence in order to protect her possession; this means that X may, in
order to protect her own property, impair an interest of Y which is not of a
proprietary nature, namely Y’s physical integrity. In Ex parte die Minister van

________________________

46 For a more detailed discussion of the subject, see Snyman 2004 SACJ 178 184–187. The
judgment in Snyders v Louw 2009 2 SACR463 (C) is largely compatible with the
approach that there is no duty to flee. See especially par 24–26. In this case Y tried to
break into X’s car which was parked in front of his house. X confronted Y with a firearm
but Y continued his aggressive behaviour towards X. The court correctly rejected the
argument that X should have fled into his house (par 25).
47 Jescheck and Weigend 343–344; Schönke-Schreuder n 40 ad s 32; Roxin ch 15 par 2, 49;
Jakobs 395.
48 Allen 194 remarks: “If there were a duty to retreat a person would never be able to use
pre-emptive force.” The American author Dressler 227 declares: “The retreat rule would
have a counter-utilitarian effect; it would embolden aggressors, and innocent people, if
required to retreat, might be killed while fleeing.”
49 Trainor 2003 1 SACR 35 (SCA) 41h–I; Snyders v Louw supra 472-475.
50 Ex parte die Minister van Justisie : in re S v Van Wyk 1967 1 SA 488 (A) 496–497.
 UNLAWFULNESS (JUSTIFICATION) 109

Justisie: in re S v Van Wyk51 the Appeal Court held that X may in extreme
circumstances even kill Y in order to protect her property. It is submitted that
this judgment is compatible with the Bill of Rights in the Constitution and
therefore valid even today, provided, of course, that the other requirements for
private defence are also complied with, such as that, the property must be of
very great value to X and that X must first have tried other, less harmful ways
to ward off the attack, to no avail.52 Furthermore, X may kill Y in private
________________________

51 1967 1 SA 488 (A). In this case X, a shopkeeper, whose shop had been broken into
repeatedly, took extensive precautionary measures to safeguard his store, without success.
At last, in desperation, he rigged up a shotgun in such a way that a person breaking in
would trigger it off if he entered by a certain window or went behind the counter to take
goods. One night an intruder broke in, set off the contrivance and received a fatal wound.
On a charge of murder X the shopkeeper invoked private defence and the court upheld his
defence. Some of the court’s most important findings were the following: Where both
X’s possessions and her life or limb are threatened by Y, Y may be killed, as where Y is a
thief whom X catches in her house during the night, and where it is clear that Y will offer
resistance rather than leave the house empty-handed (496E–H). However, one may also
kill a thief who is running away with stolen goods, provided this is the only way in which
the goods can be retained (496–498). The court disposed of the objection that there was a
disproportionality between life and property by pointing out that it is not always practic-
able to weigh the nature of the interest threatened against the nature of the interest which
is actually impaired (496–497, 503–504). There must not be a less harmful method avail-
able to X of retaining her property (497–498). Eg, if she knows that she can recover the
goods at a later stage, she may not shoot (498A). In addition, she may shoot only if she
has first issued a warning (498B–C, 505A, 510C–D) where this is reasonably practicable.
The protected possessions must also not be of trifling value (498A, 503H). The principles
enunciated in Van Wyk were later applied in Mogohlwane 1982 2 SA 587 (T).
52 It is submitted that the decision is compatible with the Constitution, provided it is clear
from the facts that X’s act was really the ultima ratio – the very last alternative – to pro-
tect her property. X has, of course, impaired Y’s right to life, but this impairment is
reasonable and justifiable. It is always reasonable and justifiable for someone whose
rights are threatened by unlawful conduct, to ward off such a threat, if need be by killing
her assailant. The same considerations apply here as those set out in the text in support of
the rule that the law can never expect the attacked party to flee. Maré in Bill of Rights
Compendium 2A–13 is also of the opinion that the decision in Van Wyk is not in conflict
with the Constitution, but Ally and Viljoen 2003 SACJ 121 and apparently also Burchell
and Milton 254 (“life must be prized above property, and Van Wyk’s days are now num-
bered”) argue that the decision is incompatible with the Constitution. It is submitted that
this latter view is wrong. Consider the following example: in the course of a mass
demonstration, demonstrators decide to loot shops which happen to be near them. X is the
owner of a jewellery shop. The contents of the shop constitute her whole life’s posses-
sions. Demonstrators smash the windows of her shop with iron bars, force the burglar
proofing open, burst into the shop and start stealing the goods. X warns them that she will
shoot them if they continue, and also fires warning shots into the air, all to no avail. If X
is not allowed to kill a plunderer, it means that the law expects her to stand with folded
arms and look on as they rob her of all her life’s possessions. It also means that the plun-
derers have a “right to steal” which is stronger than X’s right to protect her life’s prop-
erty. Why must justice yield to injustice? And if X in this situation may not kill the thief,
must one then accept that a woman who is about to be raped may also not kill her would-
be rapist? (Quite apart from this, experience – the alarming murder rate – in this country
has taught that the so-called “sacrosanct right to life” is more a chimera, an abstract
theoretical concept, than a concrete instrument of protection for innocent citizens.) In
German criminal law theory it is generally accepted that, despite the protection of rights
and values flowing directly or indirectly from the provisions of the German Grundgesetz
[continued]
110 CRIMINAL LAW

defence, not only if her life is endangered by Y’s attack on her, but also in
order to ward off serious bodily injury, provided, of course, X cannot ward off
the threat to her physical integrity in any other way than by killing Y.53 If Y
threatens to rape a woman X, X may defend her chastity even by killing Y.54
The nature of the interest protected and the interest impaired may therefore be
dissimilar. However, this rule must be tempered by the qualification that in cases
of extreme disproportion between interests, reliance on private defence may be
unsuccessful.55
Secondly, it is not required that there be a proportional relation between the
weapons or means used by the attacker and the weapons or means used by the
attacked party. If the person attacked may not defend herself with a different
type of weapon from the one used by the attacker, it follows that the attacker
has the choice of weapon, and such rule would obviously be unacceptable.56 X
may ward off an attack on her by Y by shooting and killing Y even though Y
has no weapon, because one person is capable of killing another merely by using
her hands. This is especially the case if Y is young and strong whereas X is
physically relatively weak.
Thirdly, it is not required that there be a precise proportional relation between
the value or extent of the injury inflicted or threatened to be inflicted by the
attacker and the value or extent of the injury inflicted by the defending party.57
The proportionality need not be precise; it is sufficient if it is approximate.
What an approximate proportionality is depends upon the facts of each case.
One does not, as a referee in a boxing match would do, count the exact amount
of blows executed by the attacked party and then compare it to the amount of
blows executed by the assailant. In short, precise retribution does not serve as a
basis for deciding whether a person can rely on private defence.58
It is submitted that the furthest one is entitled to generalise, is to require that
there should be a reasonable relationship between the attack and the defensive
act, in the light of the particular circumstances in which the events take place.
In order to decide whether there was such a reasonable relationship between
attack and defence, the relative strength of the parties, their sex and age, the
means they have at their disposal, the nature of the threat, the value of the
interest threatened, and the persistence of the attack are all factors (among
others) which must be taken into consideration.59 One must consider the possible
________________________

as well as from s II of the European Convention of Human Rights, X does have the right
in extreme circumstances to kill another in protection of her property – Jesheck and
Weigend 343; Baumann 323; Roxin 678–679; Wessels 97; Schönke-Schröder n 46–50 ad
s 32; Kühl ch 7 par 118; Maurach-Zipf ch 26 par 31.
53 Jackson 1963 2 SA 626 (A); K 1956 3 SA 353 (A) 359; T 1986 2 SA 112 (O) 128D–E.
54 Van Wyk supra 497A–B; Mokoena 1976 4 SA 162 (O) 163.
55 Van Wyk supra 498B.
56 Ntsomi v Minister of Law and Order 1990 1 SA 512 (C) 529C–D.
57 Van Wyk supra 496–497
58 Van Wyk supra 497B.
59 T 1986 2 SA 112 (O) 129; Trainor 2003 1 SACR 35 (SCA) 41–42; Steyn 2010 1 SACR
411 (SCA) par 19, discussed by Walker 2012 SACJ 84. It is submitted that the court in
Engelbrecht 2005 2 SACR 41 (W) par 357 went too far when it stated that a court should
also take into consideration factors such as “gender socialisation and experiences” (what-
ever this may mean) between the parties, “. . . including power relations on an economic,
[continued]
 UNLAWFULNESS (JUSTIFICATION) 111

means or methods which the defending party had at her disposal at the crucial
moment. If she 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
does not comply with this requirement for private defence.60 If, for example,
the attacked party could have overcome the threat by using her fists or by kick-
ing the assailant, she may not use a knife, let alone a firearm. However, it is
wrong to expect the attacked party, by choosing a less dangerous method, to ex-
pose herself to any risks.61
Assume that X, sleeping in her home, is woken in the middle of the night by
a burglar Y, who approaches her room or that of a family member. May X sum-
marily shoot Y in order to kill her, or must she first ask Y to identify herself and
state the purpose of her visit, in order to decide what, objectively, the appropri-
ate defensive measures would be in the circumstances? Must she first try to
arrest Y and then call the police? It is submitted that in such a situation X is
entitled summarily to resort to the extreme measure of shooting at Y. Even if
subsequent investigation reveals that Y was an unarmed or a physically weak
person who could easily have been overpowered by X, and who wanted to steal,
say, only a cell phone, it is extremely unlikely that any court would hold that X
acted unlawfully in shooting at Y. A celebrated phrase emanating from English
law reads “a person’s home is her castle”. Experience tells us that even a mo-
ment’s hesitation by X in such circumstances might be fatal to X. To deny X
the right to shoot in such circumstances is to require her to gamble with her life
or that of the other people in the house, and the law cannot expect this of her.62
(d ) The attacked person must be aware of the fact that she is acting in private
defence 63 There is no such thing as unconscious or accidental private defence.
This requirement is of more than academic importance, for two reasons.
________________________

sexual, social, familial, employment and socio-religious level . . . the impact upon the
body, mind, heart, spirit of the victim . . .” Many of the factors mentioned by the court are
too vague. Considerations such as the “mind, heart, spirit of the victim” unjustifiably
drags subjective factors into an enquiry which is entirely objective. It would result in
emotional people acquiring a right to kill where more unemotional people do not have it.
60 Van Wyk 1967 1 SA 488 (A) 501A; Van Antwerpen 1976 3 SA 399 (T); Engelbrecht
supra par 357.
61 Cf the discussion supra IV B 4(b) of the question whether there is a duty on X to flee.
62 Even if a court holds that X cannot rely on private defence because objectively there was
a less harmful way in which she could have overcome the danger, the court would in
most cases refuse to convict X of murder if she shot and killed Y, on the following
ground: although X acted unlawfully, she lacked intention because she honestly believed
that her life or that of her family members were in danger. This means that there was no
awareness of unlawfulness on her part and therefore no intention. For an explanation of
how awareness of unlawfulness forms part of intention, see infra V C 23.
63 Schönke-Schröder n 63 ad s 32; Jescheck and Weigend 342–343; Maurach-Zipf ch 26 par
27; Roxin ch 15 par 129 ff; Kühl ch 6 par 10 ff; Fletcher 559–560; Peters 214, who de-
clares: “opzet ligt ook besloten in de term weer van noodweer: men weert zich niet per
ongeluk”. The moment one tries to formulate the defence of private defence in abstract
terms, one finds that it is necessary to use a phrase denoting subjective intention such as
“in order to”. The requirement set out in the text has also been recognised by South Afri-
can writers. See Van Oosten 1977 THRHR 90 93; Labuschagne 1979 SACC 271 273;
1985 De Jure 155 158; Badenhorst 174; Morkel and Alberts 1984 TRW 104 105.
112 CRIMINAL LAW

Firstly, it prevents private defence from being abused in situations which can
be described as “provoked private defence”. Example: X is looking for a pre-
text or an excuse to assault Y, whom she dislikes. She now intentionally pro-
vokes Y, in order to make her lose her temper and assault her (X). When this
happens, X retaliates and attacks Y and then relies upon private defence. This is
not true private defence. X’s attack is unlawful, because X, who is really the
attacker, means not merely to defend herself, but to be the aggressor.64
Secondly, private defence should be excluded in cases where it is pure coinci-
dence that the act of defence is in fact directed at an unlawful attack. Example:
X decides to kill Y, whom she dislikes, and shoots and kills her while she is sit-
ting in a bus full of passengers. Only afterwards is it discovered that Y was an
urban terrorist who was on the point of blowing up the bus and all its passen-
gers with a hand-grenade. If X had not killed her in time, she (X) would have
been killed herself in the explosion. X ought not to be allowed to rely on pri-
vate defence. X never intended to act in private defence because she was com-
pletely unaware of Y’s aggressive intentions.
5 Test for private defence If X thinks that she is in danger, but she is not, or
that someone is attacking her unlawfully, but in fact the attack is lawful, the
defensive measures she takes cannot constitute private defence. This does not
mean that X is then necessarily guilty of murder or assault, as the case may be,
because an unlawful act is not the only prerequisite for criminal liability. Culp-
ability is also required and, as will be seen later,65 X’s mistake may well exclude
culpability, so that she will not be liable for the crime. This situation is known
as putative (or supposed) private defence and is, of course, not true private
defence.
It is usually stated that the test of private defence is objective.66 This prop-
osition is acceptable, provided that the role of this “objective test” is merely to
distinguish between actual private defence and putative private defence, as
explained immediately above. However, if by “objective” is meant that X need
not be aware of the fact that she is acting in private defence (requirement (d)
above of the requirements of the defence) such a so-called “objective test” is
unacceptable.
The courts sometimes state that, in order to determine whether X acted in
private defence, one should ask whether the reasonable person in the circum-
stances in which X found herself would have acted in the same way (or, to put
it differently, whether X reasonably believed that she was in danger).67 Such an
approach leads to the test of private defence (unlawfulness) being confused with
the test of negligence (where one similarly has to enquire how the reasonable
person would have acted). Upon closer scrutiny, however, it would appear that
________________________

64 Smith and Hogan 280; Schönke-Schröder n 54 ad s 32; Maurach-Zipf ch 26 par 41 ff;

Jescheck and Weigend 346–347; Kühl ch 7 par 207 ff; Jakobs 403 ff.
65 Infra V C 14.
66 Ntuli 1975 1 SA 429 (A) 436; Motleleni 1976 1 SA 403 (A) 406C; De Oliveira 1993 2
SACR 59 (A) 63i; Engelbrecht 2005 2 SACR 41 (W) par 327; Snyders v Louw 2009 2
SACR 463 (C) 474.
67 Patel 1959 3 SA 121 (A) 123; Motleleni 1976 1 SA 403 (A) 406C–D; Van Antwerpen
1976 3 SA 399 (T) 401D; De Oliveira supra 63i.
 UNLAWFULNESS (JUSTIFICATION) 113

the courts apply the reasonable person test here merely in order to determine
whether X’s conduct was reasonable in the sense that it accorded with what is
usually acceptable in society.68 In this way the criterion of the reasonable per-
son is employed merely as an aid to determine whether X’s conduct was lawful
or unlawful. There can be no criticism of such an approach.
At the same time, the courts often emphasise that in determining whether X’s
conduct was reasonable (in other words lawful), the judicial officer should not
judge the events like an armchair critic, but should to the best of her ability
endeavour to place herself in the shoes of the attacked person at the critical
moment, and keep in mind that such a person probably had only a few seconds
in which to make a decision which was of vital importance to her. The court
should then ask itself whether a reasonable person would also have acted in that
way in those circumstances. A person who suffers a sudden attack cannot always
be expected to weigh up all the advantages and disadvantages of her defensive
act, and to act calmly.69
6 Exceeding the limits of private defence If the attacked party exceeds the
limits of private defence by causing more harm or injury to the attacker than is
justified by the attack, she acts unlawfully. She then becomes an attacker her-
self. In deciding whether X is then guilty of a crime, and if so, which crime,
one must distinguish between cases in which she had killed Y and cases in
which she had only injured Y.
(a) Cases in which X kills Y In order to determine whether X, who had
exceeded the limits of private defence, is guilty of murder, culpable homicide
or perhaps not guilty of any crime, one must simply apply the ordinary test to
determine culpability (intention or negligence). The only difference between
murder and culpable homicide is the form of culpability required for each:
intention in the case of murder and negligence in the case of culpable homicide.
The position in our law is as follows:
(1) If X (the party who was originally attacked) is aware of the fact that her
conduct is unlawful (because it exceeds the bounds of private defence) and
that it will result in Y’s death, or if she subjectively foresees this possibility
and reconciles herself to it, she acts with dolus (intention accompanied by
awareness of unlawfulness) and is guilty of murder.70
(2) If intention to kill as explained in the previous sentence is absent, X can
nevertheless still be guilty of culpable homicide if she ought reasonably to
have foreseen that she might exceed the bounds of private defence and
that she might kill the aggressor. She was then negligent in respect of the
death.71
________________________

68 Steyn 2010 1 SACR 411 (SCA) par 18.

69 Patel supra 123; Ntuli 1975 1 SA 429 (A) 437 (point 7): “In applying these formulations
to flesh and blood facts, the Courts adopt a robust attitude, not seeking to measure with
nice intellectual calipers the precise bounds of legitimate self-defence”; Nyokong 1975 3
SA 792 (O) 794; Sataardien 1998 1 SACR 637 (C) 644; Snyders v Louw supra 475;
Steyn supra par 24.
70 Ntuli 1975 1 SA 429 (A) (point 6 (ii)); De Oliveira 1993 2 SACR 59 (A) 63h–i.
71 Ntuli supra 436 (point 4), 437 (point 6 (i)); Ngomane 1979 3 SA 859 (A) 863–864;
Naidoo 1997 1 SACR 62 (T) 68; Dougherty 2003 2 SACR 36 (W) 47a–b.
114 CRIMINAL LAW

(3) If, subjectively, she did not foresee the possibility of death and it can also
not be said that she ought reasonably to have foreseen it, both intention and
negligence in respect of death are absent and she is not guilty of either
murder or culpable homicide.
It must be emphasised that the mere fact that X knew or foresaw that her act
might result in Y’s death, does not mean that she intended to kill (as this require-
ment is understood in the law) and that she is therefore guilty of murder. As
will be seen later in the discussion of intention,72 awareness of unlawfulness is
an indispensable requirement of dolus (intention in the technical, legal sense of
the word). In ordinary cases where the bounds of private defence are exceeded
there can usually be no doubt that intention in the sense of a direction of the
will (ie, “colourless intention,” or intention without an appreciation of the
unlawful quality of the act) is present. After all, X wishes to put the original
aggressor out of action by killing her. What she usually does not realise is that
her conduct exceeds the bounds of private defence and that she is acting unlaw-
fully; she then has only a “colourless” intention to kill.
(b) Cases in which X only injures Y If in the course of exceeding the limits
of private defence X does not kill Y but merely injures her, there are only two
possibilities, namely that X is guilty of assault, or that she is not guilty of any
crime. The crime of assault can only be committed intentionally. There is no
such crime as negligent assault. If X subjectively knew or foresaw the possibil-
ity that she might exceed the limits of private defence and in so doing would or
could injure Y, she had the necessary intention to assault and is guilty of
assault. If she did not foresee this possibility, the intention to assault is absent
and she is not guilty.73 Mere negligence in respect of the injury does not render
her guilty of any crime.

C NECESSITY

1 Definition A person acts in necessity, and her act is therefore lawful, if

she acts in protection of her or somebody else’s life, bodily integrity, prop-
erty or other legally recognised interest which is endangered by a threat of
harm which has commenced or is imminent and which cannot be averted in
another way, provided the person is not legally compelled to endure the
danger and the interest protected by the protective act is not out of propor-
tion to the interest infringed by the act. It is immaterial whether the threat
of harm takes the form of compulsion by a human being or emanates from
a non-human agency such as force of circumstance.

2 Necessity and private defence The two grounds of justification known as

necessity and private defence are closely related to each other. In both cases X
protects interests which are of value to her, such as life, bodily integrity and

________________________

72 Infra V C 23.
73 Ntuli supra 436–437 (point 5); Mokoena 1976 4 SA 162 (O) 163.
 UNLAWFULNESS (JUSTIFICATION) 115

property, against threatening danger. The differences between these two grounds
of justification are the following:
(1) Private defence always stems from and is always directed at an unlawful
(human) attack; necessity, on the other hand, can stem from either an un-
lawful human act or from chance circumstances, such as acts of nature.
(2) Whereas in cases of private defence the act of defence is always directed at
an unlawful human attack, in cases of necessity it is directed at either the
interests of another innocent party or a mere legal provision.74
If somebody defends herself against an attack by an animal she acts in neces-
sity, not in private defence, since an animal does not act unlawfully.
Private defence is much more readily justified on ethical grounds, since there
is always an unlawful attack and the attacker simply gets what she deserves. On
the other hand, to justify necessity is more difficult. Here X finds herself in a
situation in which she must choose between two evils: she must either suffer
personal harm, or break the law; and which she should choose is often a de-
batable point. It is precisely for this reason that there must be strict compliance
with the requirements of necessity before the defence can be successful. The
attitude of our courts to a plea of necessity is often one of scepticism, and
they also emphasise that its field of application should be kept as narrow as
possible.75
If X acts in a situation of necessity, she acts lawfully, and Y can therefore not
act in private defence against X’s act.76
3 Compulsion and inevitable evil A situation of necessity may arise either
from compulsion or from inevitable evil. An example of the former is where Y
orders X to commit an act which is punishable, such as setting Z’s motor car on
fire, and threatens to kill X if she refuses to execute the command. In such a
case the emergency is the result of an unlawful human act and the act commit-
ted out of necessity (assuming that X yields to the threat) is directed at an inno-
cent third person, namely Z.
In the case of inevitable evil the situation of emergency is the result of non-
human intervention, such as acts of nature (eg floods or lightning flashes) or
other chance circumstances (eg famine or shipwreck). Examples of such cases
of necessity are the following:
(1) A fire breaks out in Y’s house while X is in it. X can save herself only by
breaking a window and escaping through it. If X is later charged with ma-
licious injury to property in respect of the broken window, she can rely on
necessity as a ground of justification for her conduct.
________________________

74 Goliath 1972 3 SA 1 (A) 22E. Examples of cases where the act of defence was directed at
a legal provision are Rabodila 1974 3 SA 324 (O) (at a provision in a law prohibiting
illegal entry into the Republic); Pretorius 1975 2 SA 85 (SWA) (at the rule prohibiting
people from exceeding the speed limit); Alfeus 1979 3 SA 145 (A) (at a prohibition in the
former Terrorism Act 83 of 1967).
75 Samuel 1960 4 SA 702 (R) 703; Damascus 1965 4 SA 598 (R) 602; Kibi 1978 4 SA 173
(E) 178.
76 Goliath supra 29 32; Adams 1981 1 SA 187 (A) 220A–B.
116 CRIMINAL LAW

(2) X’s baby Y gets hold of a bottle of pills and swallows all the pills. In order
to save Y’s life X rushes her to hospital by car and exceeds the speed limit.
If X is later charged with exceeding the speed limit, she may rely on neces-
sity as a ground of justification for her conduct.
In the first example X’s act is directed at the interests of an innocent person (Y)
while in the second example her act is an infringement of a rule of criminal law
only (the prohibition on speeding).
For necessity to be successfully raised as a defence it is immaterial whether it
stems from compulsion or from inevitable evil. Nor does it matter whether the
defensive or rescuing act is directed at the interests of another person or at a
legal provision.77 The question is merely whether the person pleading necessity
was faced with a situation of emergency.
4 Absolute and relative compulsion In the case of absolute compulsion (vis
absoluta) X does not commit a voluntary act: for example Y, who is much
stronger than X, grabs X’s hand who is holding a knife, and stabs Z. X is phys-
ically unable to prevent Y’s action. The reason for X’s non-liability is then not
necessity, but the absence of voluntary conduct.78 In the case of relative com-
pulsion (vis compulsiva) there is indeed a voluntary act on the part of X: Y
threatens to kill X if X does not kill Z. In this case X is free to choose to be
killed herself. It is only cases of relative compulsion which may amount to situ-
ations of necessity.
5 Necessity is either a ground of justification or a ground excluding culp-
ability Necessity may be either a ground of justification (which excludes the
unlawfulness of the act) or a ground excluding culpability.79 In order to under-
stand the difference between these two possible effects of necessity it is im-
portant to understand and bear in mind the general criteria for determining
unlawfulness and culpability respectively – criteria which are set out elsewhere
in this book.80
Necessity is a ground of justification if X finds herself in an emergency situa-
tion, has to weigh two conflicting interests against each other and then infringes
the interest which is of less importance according to the legal convictions of the
community, in order to protect the interest which is of greater importance. For
example, X parks her motor car in front of a doctor’s surgery on a yellow line so
that her husband, who is with her in the car, and who has just suffered a heart
attack, may reach the doctor as soon as possible. In this case the husband’s
________________________

77 Goliath supra 10–11, 22.

78 Goliath supra 11, 29, and see supra II A 8,10.
79 Bailey 1982 3 SA 772 (A) 796A; the judgment of Wessels JA in Goliath 1972 3 SA 1 (A)
27–37, especially 36G–H, 38A; Burchell and Milton 276–278; Van der Westhuizen 368–
370, 696; Van der Westhuizen 1981 De Jure 182 184; 1984 De Jure 369 380–381;
Bertelsmann 1981 THRHR 413 ff, especially 416–421; 1982 THRHR 412 417–418; Le
Roux 2002 SACJ 99 (an important and clear exposition of the law); Mousourakis 1998
Stell LR 165 175–176; Fletcher 774 ff, 802 ff, 818 ff. See also s 35 of the German penal
code, Jescheck and Weigend 479 ff; Schönke-Schröder ad s 35; Kühl ch 12 B 1; Jakobs
ch 20 1. On Dutch law, see Van Bemmelen 205 ff; Hazewinkel-Suringa-Remmelink 295 ff.
80 On the criterion for unlawfulness, see supra IV A 8–11 and on that for culpability, infra
V A.
 UNLAWFULNESS (JUSTIFICATION) 117

interest in his health outweighs the community’s interest that nobody should
park on a yellow line; when charged with contravening the parking regulations X
may successfully relies on necessity as a ground of justification.
If, however, X infringes the greater interest in order to protect the minor one,
she acts unlawfully. In certain circumstances necessity can then operate as a
ground excluding culpability, on the following basis: Although X acts unlaw-
fully, the law does not expect a person to be a martyr or a hero. X can therefore
not be blamed for committing an unlawful act – even if she acts intentionally
and with awareness of unlawfulness.81
The best example of how a situation of necessity can serve to negative culp-
ability is where X kills somebody in order to ward off a threat to her own life.
For example, Z orders X to kill Y and threatens to kill X if she fails to obey the
command; X, fearing for her life, kills Y.82 X’s conduct is unlawful because a
person is not entitled to consider her life as being more important than that of
her fellow human being. An important reason why one person’s life cannot be
regarded as more important than that of another is the provisions of section 9(1)
of the Constitution, which provides that everyone is equal before the law and
has the right to equal protection and benefit of the law. The law nevertheless
assumes that, as Rumpff JA pointed out in Goliath,83 only somebody “who is
endowed with a quality of heroism” would intentionally sacrifice her life for
that of another. X can therefore not be blamed for committing the unlawful act,
and for this reason she acts without culpability.
Two important aspects of the distinction between necessity excluding unlaw-
fulness and necessity excluding culpability should be borne in mind. Firstly, the
distinction presupposes an acceptance and application of the normative theory
of culpability – a concept which will be set out below.84 Secondly, a person
who acts in a situation of necessity which excludes unlawfulness acts lawfully
and private defence against such an act is therefore not possible. Thus if Y
resists or opposes X’s lawful conduct, she (Y) acts unlawfully. Y is obliged to
tolerate or submit to X’s conduct. Furthermore, other people act lawfully if they
come to X’s assistance, but not if they come to Y’s assistance.85 Where neces-
sity excludes culpability, on the other hand, the position is different: If X is
coerced to kill Y, she acts unlawfully and therefore Y may act in private de-
fence against X’s attack. This is in fact one of the important reasons why killing

________________________

81 This proposition becomes clearer if the principles underlying the normative theory of
culpability (infra V A 9) are borne in mind.
82 For a more detailed discussion of these types of cases, see infra par 8.
83 Supra 25C–D. See also Bailey 1982 3 SA 772 (A) 798E–F, in which mention was made
of “die gewone deursnee-mens as maatstaf van wat van die beskuldigde verwag kan word
– dus ’n normatiewe benadering”. The court added: “As dit van die beskuldigde nie ver-
wag kan word om anders te handel as die oorledene te dood nie, dan is hy nie verwytbaar
nie en moet hy onskuldig bevind word. As dit wel verwag kon word dat hy anders moes
gehandel het, is hy wel verwytbaar.” In Mandela 2001 1 SACR 156 (C) 167c–e the court
similarly assumed that on a charge of murder necessity in the form of coercion may ex-
clude X’s culpability.
84 Infra V A 9,10.
85 On the duty to submit to lawful conduct and considerations surrounding this duty, see the
previous (5th) ed of this book 101–102.
118 CRIMINAL LAW

another under coercion (ie, necessity) cannot be justified: if the coercion was
treated as a ground of justification, it would mean that the innocent victim
would be lawfully obliged to submit to the attack upon herself, and that if she
were to defend herself, her act would be unlawful! This is obviously an inde-
fensible conclusion.86
The discussion of necessity which follows is limited to necessity as a ground
of justification. Necessity as a ground excluding culpability will be briefly dis-
cussed below in the chapter dealing with culpability.
6 Requirements for a successful plea of necessity The requirements for a
successful plea of necessity closely resemble the requirements for a successful
plea of private defence. They are the following:
(a) Some legal interest of X, such as her life, bodily integrity87 or property
must be threatened. In principle one should also be able to protect other interests
such as dignity, freedom of movement and chastity in a situation of necessity.88
(b) One can also act in a situation of necessity to protect another’s interest,89
such as where X protects Y against attack by an animal.
(c) The emergency must already have begun or be imminent, but it must not
have terminated, nor be expected only in the future.90
(d ) Whether somebody can raise the defence of necessity if she herself is
responsible for the emergency is a controversial question.91 It is submitted that
X ought not to be precluded from successfully raising it merely because she
caused the emergency herself. If she were, it would mean that if, because of X’s
carelessness, her baby swallowed an overdose of pills, X would not be allowed
to exceed the speed limit while rushing the baby to hospital, but would have to
resign herself to the child’s dying. The two acts, namely the creation of danger
and rescue from it, should be kept apart. To project the reprehensibility of the

________________________

86 This consideration is emphasised by Wessels JA in Goliath 1972 3 SA 1 (A) 29H;

Bertelsmann 1984 THRHR 413 416, 420–421; Van der Westhuizen 366–367, 695; Le
Roux 1996 Obiter 247 256; 1999 THRHR 285 289–292; LAWSA 6 44; Fletcher 760–764,
766–767, 830; Dressler 309–310.
87 As regards a threat to life or bodily integrity, see Mahomed 1938 AD 30; Goliath 1972 3
SA 1 (A); Rabodila 1974 3 SA 324 (O); Alfeus 1979 3 SA 145 (A).
88 The mere danger of losing one’s job does not give one the right to act out of necessity;
if one cannot exercise one’s profession without contravening the law, one should find
another profession – Canestra 1951 2 SA 317 (A) 324.
89 Cf Pretorius 1975 2 SA 85 (SWA), where the act committed out of necessity was aimed
at protecting X’s child.
90 Pretorius supra 90B; Kibi 1978 4 SA 173 (E) 181; Lungile 1999 2 SACR 597 (SCA)
601b–c.
91 Authority for the proposition that X cannot rely on the defence of necessity if she herself
caused the situation of emergency can be found in Kibi 1978 4 SA 173 (E) 181, and in-
directly also in Bradbury 1967 1 SA 387 (A) 393E–F, 404. On the other hand, direct
authority for the contrary view, namely that X is not precluded from relying on necessity
as a defence even though she herself caused the emergency, can be found in Pretorius
supra 90D and indirectly also in Mahomed 1938 AD 30. Writers who support the latter
view include De Wet and Swanepoel 91; Van der Merwe and Olivier 89–90; Labuschagne
1974 Acta Juridica 73 94–96; Van der Westhuizen 608, 612 and Jecheck and Weigend
363.
 UNLAWFULNESS (JUSTIFICATION) 119

former onto the latter is strongly reminiscent of the discarded taint doctrine
(doctrine of versari in re illicita).92 If the first act amounts to a crime X can be
punished for it, as where she sets fire to a house and then has to break out of the
house to save her own life.
As a general rule a person who voluntarily and deliberately becomes a mem-
ber of a criminal gang with knowledge of its disciplinary code of vengeance
cannot rely on necessity (compulsion) as a defence if she participates in the
criminal activities but later alleges that she was coerced to do so.93
(e) If somebody is legally compelled to endure the danger, she cannot rely on
necessity. Persons such as police officers, soldiers and members of a fire brigade
cannot avert the dangers inherent in the exercise of their profession by infring-
ing the rights of innocent parties.94 Another aspect of this rule is that a person
cannot rely on necessity as a defence if what appears to her as a threat is in fact
lawful (human) conduct. If X is arrested lawfully, she may therefore not dam-
age the police van in which she has been locked up in order to escape from it.95
( f ) X must be conscious of the fact that an emergency exists, and that she is
therefore acting out of necessity. There is no such thing as a chance or acci-
dental act of necessity. If X throws a brick through the window of Y’s house in
order to break in, and it later appears that by so doing she has saved Y and her
family, who were sleeping in a room filled with poisonous gas, from certain
death, X cannot rely on necessity as a defence.96 If the emergency is the result
of threats or coercion, X must be aware of the threats and believe that they will
be executed. If, for example, X knows that Z, who is uttering the threats, is only
joking or only holding a toy pistol, but she nevertheless kills Y, she cannot rely
on the defence of necessity.97
(g) X’s act must be necessary in order to avert the threat or danger. Where,
for example, Z orders X to kill Y and threatens to kill X if she does not, and it
appears that X can overcome her dilemma by fleeing, she must flee if possible
and necessary seek police protection.98
(h) The harm occasioned by the defensive act must not be out of proportion to
the interest threatened, and X must therefore not cause more harm than is neces-
sary to escape the danger. This “proportionality requirement” is often expressed
in the statement that the protected interest should be of greater value than the
interest which is infringed. It is this requirement which is the most important
________________________

92 De Wet and Swanepoel 91. On this doctrine see infra V A 8.

93 Bradbury 1967 1 SA 387 (A) 404H; Lungile 1999 2 SACR 597 (SCA) 601e–g; Mandela
2001 1 SACR 156 (C) 165c–d.
94 Kibi 1978 4 SA 173 (E).
95 Kibi supra.
96 This aspect of the defence of necessity has not yet enjoyed the attention of our courts.
However, as explained supra IV A 10, X must be aware of the existence of justificatory
circumstances if she relies on a ground of justification. The same consideration applies
here as in the corresponding requirement for private defence (supra IV B 4(d)). See
Jescheck and Weigend 365; Schönke-Schröder n 48 ad s 34; Maurach-Zipf ch 27 par 44
ff; Kühl ch 8 par 183 ff; Roxin ch 16 par 105 ff.
97 Mucherechdzo 1982 1 SA 215 (ZS) 217B–C.
98 Damascus 1965 4 SA 598 (R), 603–604; Bradbury 1967 1 SA 387 (A) 390C, 393F–G,
392C–D, 404; Rabodila supra 325; Alfeus supra.
120 CRIMINAL LAW

one in practice, and it can also be the most difficult to apply.99 The protected and
the impaired interests are often of a different nature, as where somebody
damages another’s property in protection of her own physical integrity.
It is impossible to draw up strict abstract rules in advance for determining
whether the defensive act is proportionate to the imminent danger. Each case
must be judged in light of its own particular circumstances. One of the most
important – and also the most difficult – questions arising in respect of the
requirement under discussion is whether one is entitled to kill another in a
situation of necessity. Because of its complexity this question will be discussed
separately below.100
7 Putative necessity If X subjectively thinks that she is in an emergency situ-
ation whereas there is, in fact no threat to her interests, she cannot succeed with
a plea of necessity. If in such a case she commits an act which does not comply
with the requirements of the defence of necessity, her act is unlawful. However,
her mistaken belief in the existence of justificatory circumstances may exclude
culpability: If she is charged with a crime requiring intention, her mistake could
mean that she lacked awareness of unlawfulness and therefore dolus (inten-
tion).101 If she is charged with a crime requiring negligence, her mistake could
serve to exclude culpability provided the mistake was reasonable.102 A putative
(imagined) situation of necessity can therefore not be equated with a real one.
The courts often state that in order to determine whether a plea of necessity
should succeed, one should apply the test of the reasonable person: would she,
if she were to find herself in the same circumstances, do the same as X did?103
This, however, is the test for negligence. In cases of necessity it must be deter-
mined whether X really found herself in a situation of emergency. However, it
seems that our courts, in speaking of the reasonable person in this connection,
mean only that X’s conduct must have been reasonable. They seem to regard
the reasonable person as a personification of the legal notions of society, and
this test merely as a practical aid in determining the unlawfulness of the act.
8 Killing another person out of necessity
(a) Killing another in necessity may constitute a complete defence Possibly
the most controversial question relating to necessity as a ground of justification
is whether a person who is threatened may kill another in order to escape from
the situation of emergency. Naturally, the question arises only if the threatened
person finds herself in mortal danger. This mortal danger may stem from com-
pulsion, as where Y threatens to kill X if X does not kill Z, or from an event not
________________________

99 On this requirement, see generally Malan 1998 2 SACR 143 (C).

100 Infra par 8.
101 Van Zyl [1996] 1 All SA 336 (W). In this case motorist X was involved in a slight
motor accident. He failed to stop after the accident. He thought that he was the victim of
a planned hijacking of his motor car. On the facts the court could not find that there was
indeed an attempt to hijack his car, but the court held that he honestly believed that his
car would be hijacked. He was found not guilty of the statutory crime of leaving the
scene of an accident because of lack of culpability (intent). For an analysis of the judg-
ment, see Snyman 1996 SACJ 220.
102 See the discussion of intention and negligence infra IV C 14, 23; V D 16.
103 Goliath supra 11; Rabodila supra 325; Peterson 1980 1 SA 938 (A) 949F–G.
 UNLAWFULNESS (JUSTIFICATION) 121

occasioned by human intervention, as where two shipwrecked persons vie for

control of a timber beam which can support only one of them, and the one
eventually pushes the other away in order to stay alive.104
In Goliath105 the Appellate Division held that necessity could be a complete
defence even in a situation in which X killed another. In this case X was ordered
by Z to hold Y tightly so that Z might stab and kill Y. X was unwilling through-
out, but Z threatened to kill him if he refused to help him. The court inferred
from the circumstances of the case that it was not possible for X to run away
from Z – Z would then have stabbed and killed him. The only way in which X
could save his own life was by yielding to Z’s threat and assisting him in the
murder. In the court a quo X was acquitted on the ground of compulsion, and
on appeal by the state on a question of law reserved, the Appellate Division
held that compulsion could, depending upon the circumstances of a case, con-
stitute a complete defence to a charge of murder. It was added that a court
should not come to such a conclusion lightly, and that the facts would have to
be closely scrutinised and judged with the greatest caution.
One of the decisive considerations in the main judgment of the court, deliv-
ered by Rumpff JA, was that one should never demand of X more than is
reasonable; that, considering everyone’s inclination to self-preservation, an
ordinary person regards her life as more important than that of another; that
only she “who is endowed with a quality of heroism” will purposely sacrifice
her life for another, and that to demand of X that she should sacrifice herself
therefore amounts to demanding more of her than is demanded of the average
person.106 It is submitted that the judgment in Goliath is correct.
(b) Act committed in necessity operates here as ground excluding culpability
and not as ground of justification The important question which arises from a
dogmatic point of view, is whether the compulsion in the circumstances of this
case amounted to a ground of justification or whether it was a ground which ex-
cluded X’s culpability. In delivering the main judgment, Rumpff JA expressly
declined to answer this question.107 However, Wessels JA in his minority judg-
ment expressly decided that the compulsion excluded not the unlawfulness of
the act, but X’s culpability.108 It is submitted that this view is correct. Wessels JA
quite correctly pointed out109 that if the compulsion were a ground of justifi-
cation, it would mean that X’s conduct was lawful and that Y would not have
been entitled to act in private defence against X’s aggression, since acting in
private defence is not possible against lawful conduct. This is obviously an
untenable conclusion. Y would have been compelled by law to submit to X’s
mortal attack on himself. Two parties who are locked in mortal combat against
________________________

104 For an extensive discussion of the subject, see Burchell and Milton 267–279; Van der
Westhuizen 617–696; Paley 1971 Acta Juridica 205 230 ff; Zeffert 1975 SALJ 321;
Pauw 1977 De Jure 72, Burchell 1977 SALJ 282; Burchell 1988 SACJ 18; Maré 1993
SACJ 165.
105 1972 3 SA 1 (A).
106 At 25.
107 At 25H–26A.
108 At 36G–H, 38A.
109 At 29H.
122 CRIMINAL LAW

each other cannot both be acting lawfully. In Mandela110 the court likewise
assumed that on a charge of murder necessity in the form of coercion may
exclude X’s culpability.
A second and related reason why X’s conduct cannot be regarded as justified
is the consideration that X did not protect an interest which was of greater value
than the one she infringed, because the law ought not to assume that one per-
son’s life is more valuable than that of another. To assume that one person’s
life is more valuable than that of another is incompatible with section 9(1) of
the Constitution, which provides that everyone is equal before the law and has
the right to equal protection and benefit of the law. The provisions of sections
10 and 11, which provide for a right to human dignity and life respectively, fur-
ther strengthen the view that one person’s life may not be regarded as more
valuable than that of another.
A set of facts such as the one presently under discussion should legally be con-
strued as follows: X’s conduct towards Y was unlawful (which implies that Y
was indeed entitled to act in private defence against X’s attack upon her). Her
(X’s) conduct was also intentional: she acted with awareness of unlawfulness.
However, X escapes liability because she did not act with culpability.111 The
reason why she did not act with culpability is because the law could not reason-
ably have expected of her to act otherwise. Therefore her conduct was not
blameworthy.112 Blameworthiness and culpability were absent in terms of the
application of the normative theory of culpability.113 This way of construing
this set of facts is followed not only on the European continent, but lately also
increasingly by authors in the Anglo-American legal tradition.114
9 Necessity as a ground for the mitigation of punishment If the defence of
necessity is rejected, for example because X could have fled, or because the in-
fringed interest was more important than the one protected, the extent of the
threat to X may be taken into account as a mitigating factor when punishment is
imposed.115

D CONSENT
1 General Consent by the person who would otherwise be regarded as the
victim of X’s conduct may, in certain cases, render X’s otherwise unlawful con-
duct lawful. To generalise about consent as a ground of justification in criminal
________________________

110 2001 1 SACR 156 (C) 167c–e.

111 Le Roux 2002 SAS 99.
112 See the discussion infra V G.
113 See in respect of the normative concept of culpability infra V A 9.
114 Fletcher 802 ff 818 ff; Dressler 299 ff, in particular 305; Robinson 2 354–355 369;
Williams 1982 Criminal Law Review 732; Roberts (from the University of Nottingham)
1998 SACJ 285 310; Sendor 1990 Wake Forest LR 707 716, 733, 747; Mousourakis (an
Australian author) 1998 Stell LR 165 175–176; s 244 of the draft code compiled by the
American authors Robinson, Greene and Goldstein and published in 1996 Journal of
Criminal Law and Criminology 304 ff. Also see the judgment of the Canadian court in
Perka v R [1985] 42 CR 3d 113, where the court recognized necessity as ground to ex-
clude culpability. As to South African authors, see Paizes 1996 SALJ 237, in particular
259; Burchell and Milton 276–278.
115 Werner 1947 2 SA 828 (A) 837–838; Mneke 1961 2 SA 240 (N); Goliath supra 23, 30;
X 1974 1 SA 344 (RA) 348B–D.
 UNLAWFULNESS (JUSTIFICATION) 123

law is possible only to a limited degree, since consent can operate as a ground
of justification in respect of certain crimes only, and then only under certain
circumstances. If, in crimes in which consent may exclude the unlawfulness of
the act (such as theft), no consent has been given, the conduct is unlawful. If X
thinks that consent has been given, whereas in fact no consent has been given,
X may escape liability on the ground that she lacked culpability.116
2 Requirements for successfully relying on consent as a defence The re-
quirements for successfully relying on consent as a defence will now be dis-
cussed. The first requirement (marked (a)) requires the longest discussion, and
will, in the interests of clarity, be subdivided into a number of subdivisions
(marked (i) to (iii)). These subdivisions should not be confused with the later
separate requirements marked (b) to (g)).
(a) The crime and the type of act in question must be of such a nature that
the law recognises consent to the commission of such an act as a ground of
justification Consent does not operate as a ground of justification in all crimes,
and in those crimes in which it does, it does so in certain circumstances only. It
is therefore necessary first of all to identity the crimes in respect of which con-
sent can operate as a ground of justification. The following is a diagram of the
broad arrangement of the field of investigation:

Crimes in respect of
which consent may
operate as justification

Crimes against Crimes against

specific individual community or state

Consent no defence

Crimes where Crimes

Crimes where Crimes where
absence of where
consent is a consent is
consent forms part consent can
ground of sometimes a
of definitional never be a
justification justification
elements defence

eg theft, injury to
eg rape eg murder eg assault
property

Requirements for
valid consent –
see below (b)–(g)

________________________

116 K 1958 3 SA 420 (A) 421, 425; Z 1960 1 SA 739 (A); D 1963 3 SA 263 (E) 267.
124 CRIMINAL LAW

(i) Crimes in respect of which consent may operate as a ground of justifi-

cation A distinction must be drawn between those types of crimes which are
committed against a specific, identifiable, individual person, and those that are
not committed against an individual but against the community or the state, such
as high treason, perjury, bigamy, possession of drugs or contravention of the
speed limit. There is no room for the defence of consent in the latter type of
crimes. It can only operate as a defence in the former.
Turning now to those crimes that are always committed against a specific in-
dividual, it is useful, in considering the effect of consent on liability, to classify
these crimes into four categories.
Firstly, there are those crimes in respect of which consent does operate as a
defence, but whose dogmatic structure is such that the consent does not operate
as a ground of justification because the absence of consent forms part of the de-
finitional elements of the crime. The best-known example in this respect is
rape. A person (X) only commits rape if the penetration takes place without the
victim’s (Y’s) consent. Absence of consent must of necessity form part of the
definitional elements of the crime, because it forms part of the minimum
requirements necessary for the existence of a meaningful criminal prohibition.
Secondly, there are crimes in respect of which consent by the injured party is
never recognised as a defence. The best-known example is murder.117 Mercy
killing (euthanasia) at the request of the suffering party is unlawful.118
Thirdly, there are crimes in respect of which consent does operate as a ground
of justification. Well-known examples of such crimes are theft and malicious
injury to property.
Fourthly, there is a group of crimes in respect of which consent is sometimes
regarded as a ground of justification and sometimes not. An example of a crime
falling into this category is assault.
As far as this fourth group of crimes is concerned, it should be borne in mind
that, unlike the law of delict, which in principle protects individual rights or in-
terests, criminal law protects the public interest too; the state or community has
an interest in the prosecution and punishment of all crimes, even those commit-
ted against an individual. The result is that, as far as criminal law is concerned,
an individual’s consent to impairment of her interests is not always recognised
by the law. Thus intercourse with a girl below a certain age constitutes a crime
even where she consents, and even physical harm inflicted on somebody at her
own request is sometimes regarded by the law as unlawful and therefore as
amounting to assault. It is difficult to pinpoint the dividing line between harm
to which one may and harm to which one may not consent. The criterion to be
applied in this respect is the general criterion of unlawfulness, namely the com-
munity’s perceptions of justice or public policy.119
________________________

117 Robinson 1968 1 SA 666 (A) 678; Hibbert 1979 4 SA 717 (D); Agliotti 2011 2 SACR
437 (GSJ) par 21. Although suicide is no longer a crime (Grotjohn 1970 2 SA 355 (A)
363), somebody who assists another in committing suicide, or who brings it about, may
render herself guilty of murder – Grotjohn supra;.Agliotti supra.
118 Hartmann 1975 3 SA 532 (C); Nkwanyana 2003 1 SACR 67 (W) 72d–f.
119 Cf supra IV A 8 and see Sikunyana 1961 3 SA 549 (E) 551; Collett 1978 3 SA 206
(RA) 209, 211–213.
 UNLAWFULNESS (JUSTIFICATION) 125

(ii) When consent may be a ground of justification in assault On a charge of

assault, consent may sometimes be a ground of justification and sometimes not.
The best-known examples of assault cases where consent may indeed operate
as a defence are those where injuries are inflicted on others in the course of
sporting events, and where a person’s bodily integrity is impaired in the course
of medical treatment, such as an operation. Other examples of “impairments of
bodily integrity” such as a kiss, a handshake or even a haircut occur so often in
everyday life that non-liability is taken for granted.
A participant in sport may validly consent only to those injuries which are
normally to be expected in that particular sport. Voluntary participation in a
particular type of sport may also imply that the participant consents to injuries
sustained as a result of acts which contravene the rules of the game, such as a
late tackle in rugby, but only if such incidents are normally to be expected in
that particular game. Serious injuries which are forbidden by the rules of the
game and which are not normally to be expected cannot, however, be justified
by consent.
The reason why a medical doctor cannot be charged with assaulting a patient
upon whom she performs an operation is the patient’s consent to the operation120
(assuming that it has been given). If it was impossible for the patient to consent
because of unconsciousness or mental illness, for example, the doctor’s conduct
may nevertheless be justified by necessity or presumed consent.121 In all these
cases the doctor must have the intention of performing a medical operation on
the patient.122 If, however, the patient refuses to consent, the doctor’s conduct
is, with certain exceptions,123 not justified.
(iii) Sexual assault Sexual assault (presently a statutory crime)124 may be
committed with or without the use of force or the infliction of injuries.125 Con-
sent may operate as a justification for the act if no injuries are inflicted.126 Where
injuries are inflicted, it has been held that consent may not be pleaded as a
defence.127 It would, however, seem to be more realistic to enquire in such
cases too whether the act is contra bonos mores or not. If the injury is slight, it
is conceivable that the law may recognise consent to the act as a defence.128
(b) The consent must be given voluntarily, without coercion129 Whether con-
sent has been given voluntarily, is mostly a factual question. Consent obtained
as a result of violence, fear or intimidation is not voluntary consent. If, for
example, X brandishes a revolver while demanding money from Y and Y hands
over the money because she feels threatened, there is no valid consent to the
________________________

120 Sikunyana 1961 3 SA 549 (E) 551; D 1998 1 SACR 33 (T).

121 On necessity, see supra IV C and on presumed consent infra IV E.
122 Strauss 1964 SALJ 179 183, 187.
123 As where a parent consents to a necessary operation on an unwilling child. See generally
the discussion in Strauss 5–6.
124 Infra XI D.
125 Infra XI D.
126 Matsemela 1988 2 SA 254 (T); D 1998 1 SACR 33 (T) 39d–e.
127 D 1963 3 SA 263 (E) 265.
128 Matsemela 1988 2 SA 254 (T).
129 C 1952 4 SA 117 (O) 121; M 1953 4 SA 393 (A). For a more detailed discussion of this
requirement, see the discussion of the corresponding requirement in rape infra XI B 6.
126 CRIMINAL LAW

giving of the money.130 Mere submission is not consent.131 If a woman decides

that it is futile to resist the strong, armed attacker who is trying to rape her, and
simply acquiesces in what he does to her, her conduct cannot be construed as
consent to intercourse.132
(c) The person giving the consent must be mentally capable of giving con-
sent She must have the mental capacity to know not only the nature of the act
to which she consents, but also to appreciate its consequences. For this reason if
a woman is mentally ill, under a certain age, drunk, asleep or unconscious, she
cannot give valid consent to sexual penetration.133 As far as children are con-
cerned, a girl under the age of twelve is at law incapable of giving valid consent
to sexual intercourse. Even if she “consents”, sexual penetration of her amounts
to rape.134
In respect of other crimes there is no such arbitrary age limit. In these cases
whether the child is endowed with the required mental abilities is always a
question of fact. Factors such as the child’s intelligence, experience of life, gen-
eral standard of education and social background must be taken into account.
Sexual penetration of a person above the age of twelve years but below the age
of sixteen, with consent, is not rape, but constitutes a statutory crime sometimes
referred to as “statutory rape”, that is, contravening section 15(1) of the Crimi-
nal Law (Sexual Offences and Related Matters) Amendment Act.135
(d) The consenting person must be aware of the true and material facts re-
garding the act to which she consents What the material facts are depends on
the definitional elements of the particular crime. In the case of rape the woman
must be aware of the fact that it is sexual penetration to which she is consent-
ing. If she thinks that an operation is to be performed on her, there is no valid
consent.136 This is a case of a mistake in respect of the act, known as error in
negotio. If, on the other hand, the woman knows that she is consenting to sexual
penetration, but is merely mistaken as regards its consequences (as where she
thinks that the penetration will cure her of a vaginal infection), there is valid
consent.137
In cases of rape, there can furthermore be no valid consent if the woman mis-
takes the identity of the man (error personae). If, in the darkness of the hotel
room, she thinks that it is her husband who is having intercourse with her,
whereas in fact it is a stranger, there is no valid consent.138
(e) The consent may be given either expressly or tacitly It is customary to
require the patient to give written consent to some types of operation, but nat-
urally the rugby player need not before a game give each of his opponents
express permission to tackle him. There is no qualitative difference between
express and tacit consent.
________________________

130 Ex parte Minister of Justice: in re R v Gesa; R v De Jongh 1959 1 SA 234 (A).

131 McCoy 1953 2 SA 4 (R) 12; D 1969 2 SA 591 (RA).
132 Volschenck 1968 2 PH H283 (D).
133 C 1952 4 SA 117 (O) 121; K 1958 3 SA 420 (A) 421.
134 K 1951 4 SA 49 (O) 52; Z 1960 1 SA 739 (A) 742.
135 32 of 2007. See infra XI N.
136 Flattery [1877] 2 QBD 410; Williams [1923] 1 KB 340.
137 Williams 1931 1 PH H38 (E); K 1966 1 SA 366 (RA).
138 C 1952 4 SA 117 (O) 120–121.
 UNLAWFULNESS (JUSTIFICATION) 127

( f ) The consent must be given before the otherwise unlawful act is commit-
ted Approval given afterwards does not render the act lawful. Consent, once
given, remains revocable, provided the act has not yet been committed.139 A
person cannot bind herself never to revoke consent to, for example, assault.
Such an agreement would be invalid as being contra bonos mores. Neither can
an employee, for example, agree with her employer that she will waive the pro-
tection which the law affords her against unlawful assault, and allow her em-
ployer to decide when she may be punished.140 Such “consent” is in conflict
with public policy, for it undermines the whole operation of the legal order on
the basis of the equality of all people in the eyes of the law.
(g) In principle consent must be given by the complainant herself, but in
exceptional circumstances someone else may give consent on her behalf, as
where a parent consents to an operation to be performed on her child.

E PRESUMED CONSENT141

1 Definition If X commits an act which infringes the interests of another

(Y), and X’s act thereby accords with the definitional elements of a crime,
her conduct is justified if she acts in defence of, or in the furthering of, Y’s
interests, in circumstances in which Y’s consent to the act is not obtainable
but there are, nevertheless, at the time of X’s conduct reasonable grounds
for assuming that Y would indeed have consented to X’s conduct had she
been in a position to make a decision about it.142

The type of conduct falling under this ground of justification is usually discussed
by authors of textbooks on criminal law under the heading of “spontaneous
agency”, “unauthorised administration” or “negotiorum gestio”. Whereas in the
ground of justification known as consent there is an actual manifestation of the
will on the part of Y, in this ground of justification the law ascribes to Y a pre-
sumed consent.

________________________

139 Handcock 1925 OPD 147; M 1953 4 SA 393 (A) 397–398.

140 Collett 1978 3 SA 206 (RA) 211, 212.
141 Labuschagne 1994 TSAR 811; Snyman 1996 THRHR 106. There is, as far as could be
ascertained, no South African decision in a criminal matter in which this defence was
squarely an issue. The reason for this is not that the defence is not recognised in our
law, but simply that in sets of facts in which this defence comes to the fore, it is mostly
so obvious that X’s conduct is justified, that the prosecution authorities do not even
bother to charge X with the commission of a crime.
142 Snyman 1996 THRHR 106 107. S 20(3) of the Transkeian Penal Code of 1983 (Act 9
of 1983 of the Transkei) contains a provision which to a large extent covers the ground
of justification presently under discussion. The subs reads as follows: “No act or omis-
sion shall be an offence by reason of any harm which it may cause to a person for
whose benefit it is done in good faith, even without that person’s consent, if the circum-
stances are such that it is impossible for the person to signify consent, or if that person
is incapable of giving consent and has no guardian or other person in lawful charge of
her from whom it is possible to obtain consent in time for the thing to be done with
benefit.”
128 CRIMINAL LAW

2 Examples The following are some examples of situations in which this

ground of justification finds application:
(a) Y loses consciousness in a motor accident. X1, an ambulance driver and
paramedic summoned to the scene of the accident, transports Y to a hospital
where X2 performs an operation on her in order to save her life. Although X1’s
conduct conforms to the definitional elements of kidnapping (deprivation of a
person’s freedom of movement), her conduct is justified by the present ground
of justification and she can accordingly not be found guilty of this crime. As far
as X2 is concerned, although her conduct conforms to the definitional elements
of assault, she is not guilty of this crime because her conduct is justified by the
present ground of justification.
(b) While X’s neighbour, Y, is away on holiday, X notices that Y’s house
has been broken into. It is impossible for X to contact Y. In order to protect
Y’s possessions, X affixes some form of burglar proofing to the windows of
Y’s house and removes some of Y’s belongings to her (X’s) house for safe-
keeping until Y returns. If X is subsequently charged with trespassing onto Y’s
property, injury to property (because of her affixing of burglar proofing to the
windows of Y’s house) and theft of Y’s property (because of her removal of
some of Y’s belongings to her (X’s) house), she can invoke this ground of
justification as a defence.
3 Requirements for successfully relying on this ground of justification The
requirements for successfully relying on this ground of justification are the
following:143
(a) It must not be possible for X to obtain Y’s consent in advance. If it is
possible, X must obtain Y’s consent, in which case X may rely on consent
as justification.
(b) There must be reasonable grounds for assuming that, had Y been aware of
the material facts, she would not have objected to X’s conduct. The test to
ascertain the existence of reasonable grounds is objective.
(c) The reasonable grounds for assuming that Y would not have objected to
X’s conduct must exist at the time that X performs her act.
(d) At the time of performing her act X must know that there are reasonable
grounds for assuming that Y would not object to her (X’s) acts.
(e) X must intend to protect or further Y’s interests.
(f) X’s intrusion into Y’s interests must not go beyond conduct to which Y
would presumably have given consent.
(g) It is not required that X’s act should indeed have succeeded in protecting
or furthering Y’s interests.

F OFFICIAL CAPACITY

1 Definition An act which would otherwise be unlawful is justified if X is

entitled to perform it by virtue of the office she holds, provided it is per-
formed in the execution of her duties.

________________________

143 See Snyman 1996 THRHR 106 for a more detailed discussion of these requirements.
 UNLAWFULNESS (JUSTIFICATION) 129

2 General Applying the abovementioned definition, the clerk whose duty it

is to supervise the exhibits in court cases and who locks up a bundle of drugs in
a chest, is not guilty of the unlawful possession of drugs which are exhibits in a
court case; the official whose duty it is to confiscate liquor or a dangerous
weapon in terms of a court order does not commit malicious injury to property,
and the police official who searches an arrested or suspected criminal does not
commit assault or crimen iniuria.
Even where a government official acts in her official capacity in terms of an
Act which is not binding on the state, her otherwise unlawful act may still be
justified by her official capacity.144 An Act which is not binding on the state
may nevertheless still be binding on its officials, unless the Act either expressly
or by implication authorises the official to contravene its provisions in certain
circumstances.145 Thus, for example, it has been held that a post office official
who exceeds the speed limit in her official vehicle whilst doing her rounds
collecting post from post-boxes does not act unlawfully if she would not other-
wise be able to complete her work in time.146
An instance of official capacity serving as ground of justification is where a
police official assaults or even kills somebody in the course of arresting or
attempting to arrest such a person. Because of the importance of this subject it
is discussed immediately below under a separate heading.

G USE OF FORCE AND HOMICIDE

DURING ARREST
1 General If a police officer or any other person authorised to make an
arrest (hereafter X) arrests a criminal or an alleged criminal (hereafter Y), or
attempts to arrest such person, and Y resists the arrest or flees or tries to flee,
the law allows X, within certain limits, to use such force against Y as is reason-
ably necessary to overcome Y’s resistance. X will then not be guilty of assault-
ing Y. The arrest must of course be lawful. The question of who is authorised to
make an arrest, under which circumstances and in which way, will not be dis-
cussed here. These matters are set out in detail in sections 38 to 48 of the Crim-
inal Procedure Act 51 of 1977. The justification for the use of force, or even
homicide, by someone who is arresting another, is governed by statute, namely
section 49 of the Criminal Procedure Act. The previous wording of section 49
was declared unconstitutional by the Constitutional Court in Ex parte Minister
of Safety and Security: in re S v Walters.147 In 2003 a new wording for section
49 came into effect148 and in 2012 the wording was amended again.149

________________________

144 Church 1935 OPD 70; Thomas 1954 1 SA 185 (SWA); Huyser 1968 3 SA 490 (NC).
145 De Bruin 1975 3 SA 56 (T). Cf also Reed 1972 2 SA 34 (R).
146 De Beer 1929 TPD 104.
147 2002 2 SACR 105 (CC).
148 S 29 was amended by s 7 of the Judicial Matters Second Amendment Act 122 of 1998.
149 By s 1 of Act 9 of 2012.
130 CRIMINAL LAW

2 Wording of section 49 The wording of the section is as follows:

49. Use of force in effecting arrest

(1) For the purposes of this section–
(a) ‘arrestor’ means any person authorised under this Act to arrest or to
assist in arresting a suspect;
(b) ‘suspect’ means any person in respect of whom an arrestor has or had
a reasonable suspicion that such person is committing or has commit-
ted an offence; and
(c) ‘deadly force’ means force that is likely to cause serious bodily harm
or death and includes, but is not limited to, shooting at a suspect with
a firearm.
(2) If any arrestor attempts to arrest a suspect and the suspect resists the
attempt, or flees, or resists the attempt and flees, when it is clear that an
attempt to arrest him or her is being made, and the suspect cannot be
arrested without the use of force, the arrestor may, in order to effect the
arrest, use such force as may be reasonably necessary and proportional in
the circumstances to overcome the resistance or to prevent the suspect from
fleeing. but, in addition to the requirement that the force must be reason-
ably necessary and proportional in the circumstances, the arrestor may use
deadly force only if–
(a) the suspect poses a threat of serious violence to the arrestor or any
other person; or
(b) the suspect is suspected on reasonable grounds of having committed a
crime involving the infliction or threatened infliction of serious bodily
harm and there are no other reasonable means of effecting the arrest,
whether at that time or later.

The 2012 amendment of the section amounted to a substantial change in the

law relating to this subject. The former wording inserted by the 1998 amend-
ment favoured criminals or suspected criminals and placed all sorts of unneces-
sary barriers in the way of the police when effecting an arrest which involved
injuring or killing a suspect.150
3 Three basic requirements set out in section 49 For the defence described
in section 49 to succeed, the following three basic requirements must be com-
plied with:
(a) the requirement of necessity;
(b) the requirement of proportionality; and
(c) the requirement that
(i) Y must pose a threat of serious violence or
(ii) X must have a suspicion that Y had committed a crime involving
serious bodily harm in the past.
Each of these three requirements will now be discussed.
________________________

150 For criticism of the previous wording, the discussion of this subject in the 5th ed of this
work may be consulted.
 UNLAWFULNESS (JUSTIFICATION) 131

4 X’s conduct must be necessary As with certain other grounds of justifi-

cation, such as private defence, necessity and lawful chastisement, two of the
most important requirements for a successful reliance on the defence created in
section 49 are the requirements that X’s conduct should be necessary and the
requirement that the conduct should be proportional. The requirement that the
conduct should be necessary means that X’s conduct should be the only way in
which X can effect Y’s arrest. This is is apparent from the words “the suspect
cannot be arrested without the use of force” and “use such force as is reason-
ably necessary” in subsection (2).
If there is any other way in which Y’s arrest can be effected without using
force, X cannot rely on the protection of section 49. X may not shoot at or
assault Y during the arrest, if it is possible for X to arrest Y without the force
referred to. If, for example, X knows where Y lives and it is possible for X to
arrest Y there without the use of force, she should arrest Y at Y’s house. Fur-
thermore, before firing at Y, X should first warn Y verbally that, should Y not
stop fleeing, X will fire a shot at her. (“Stop or I’ll shoot!”) If such verbal
warning does not have the desired effect, X ought, depending on the circum-
stances, first to fire a warning shot in the air or the ground. If this also does not
have the desired effect, X ought first to fire at Y’s legs, as opposed to her
body.151
5 Requirement of proportionality The requirement of proportionality is
expressly incorporated into section 49. It means that the nature and degree of
force applied by X should be proportional, not only to the seriousness of the
crime which Y is suspected of having committed, but also to the degree of
danger that Y’s conduct during the arrest poses for the safety of X and other
members of society.152 Whether such proportionality indeed exists in a given
instance, is mostly a question of fact. This requirement largely resembles the
corresponding requirement in the defence known as private defence, which has
already been discussed in some detail.153
6 Third basic requirement: the proviso in section 49(2) In addition to the
requirements of necessity and proportionality discussed immediately above, the
proviso in subsection (2) incorporates a third general requirement which must
be complied with before X can successfully rely on the defence set out in the
section. The proviso starts with the words “but, in addition to . . .” towards the
end of subsection (2).
This third general requirement is that “deadly force” (as this expression is
defined in subsection (1)(c)) may be used only in certain defined circumstances
set out is subsection 2(a) and (b). The gist of these subparagraphs is that the
deadly force may only be used if
(i) Y’s behaviour amounts to a serious threat of violence to X or another
or
________________________

151 Ex parte Minister of Safety and Security: in re S v Walters 2002 2 SACR 105 (CC)
119e–f; Matlou v Makhubedu 1978 1 SA 946 (A) 958A–B; Macu v Du Toit 1983 4 SA
629 (A) 637 ff.
152 Govender v Minister of Safety and Security 2001 2 SACR 197 (SCA).
153 Supra IV B 4 (c).
132 CRIMINAL LAW

(ii) X has a reasonable suspicion that Y had in the past committed a crime
involving serious bodily harm and there are no other means of arresting
Y.
The meaning of the words “deadly force” is set out in subsection (1)(c). The
legislature’s choice of words in this regard is unfortunate. “Deadly force”
surely means “force resulting in death”. Force aimed at causing only serious
bodily harm can by definition not be “deadly force”. Nevertheless the definition
in subsection (1)(c) makes it clear that the words “deadly force” as used here by
the legislature refers to force that is either deadly or that leads to serious bodily
harm. It is submitted that the word “serious” as used here by the legislature
bears the same meaning as “grievous” – an important term in the crime known
as “assault with intent to do grievous bodily harm”.154
The provisions of subsection 2(a) and (b) do not apply cumulatively but al-
ternatively.
7 The wording of subsection 2(a) The provisions of subsection 2(a) is
largely self-explanatory. They bear resemblance to the corresponding require-
ments in the defence known as private defence, which was discussed above.155
The test to determine whether section 2(a) has been complied with is objective:
it is not enough for X to subjectively have believed that Y’s behaviour posed a
threat.
It is noticeable that the wording does not require the threat to be “immedi-
ate”. X may act in private defence only if there is an immediate threat of harm
or violence to her or somebody else.156 In the previous wording of the section
(inserted by the 1998 amendment which came into operation in 2003)157 it was
specifically required that the threat had to be immediate. However, it is submit-
ted that the context of subsection 2(a) dictates that the threat must be immedi-
ate. The legislature could not have intended to give X the right to use “deadly
force” when arresting Y in circumstances in which X only feared that Y may
inflict “serious violence to the arrestor or any other person” days later.
8 The wording of subsection 2(b) Whereas subsection 2(a) refers to some-
thing that may happen in the future (a threat of serious violence), subsection
2(b) refers to something that has happened in the past (“suspected . . . of having
committed a crime”).
Subsection 2(b) only refers to situations in which Y is believed to have com-
mitted a crime involving the infliction of serious bodily harm. It does not refer
to situations in which Y is suspected of having committed crimes not involving
bodily harm, such as theft, fraud, corruption or crimen iniuria.
Subsection 2(b) only speaks of “serious bodily harm”, and not of any form of
homicide such as murder or culpable homicide, but it is submitted that, consider-
ing the definition of “deadly force” in subsection 1(c), as well as the general aim
of the provision, the words “serious bodily harm” in subsection 2(b) includes

________________________

154 Infra XV A 8.
155 Supra IV B 3.
156 Supra IV B 3(c).
157 See the reference supra par 1.
 UNLAWFULNESS (JUSTIFICATION) 133

killing. It would be anomalous if X is allowed to arrest and even kill Y on a

reasonable suspicion of having committed a serious form of assault, but not if
she has a reasonable suspicion that Y had committed the more serious crime of
murder. (It is to be regretted that the legislature had not, in the interests of
clarity, inserted the words “or killing” after the words “serious bodily harm” in
subsection 2(b).) If X, a security guard, witnesses Y shooting and killing Z and
driving off in Z’s car in the course of a car hijacking, X may shoot Y, provided
the circumstances are such that there are no reasonable means of effecting the
arrest. If, for example, X knows Y’s identity and her place of residence, she
may not shoot Y, because she can then arrest Y later at her place of residence.
The wording of subsection 2(b) is wide enough to refer to situations in which
X reasonably believes that Y has committed a crime or a number of crimes
involving serious bodily harm in the past, as where she believes Y to be a so-
called “serial murderer” or “serial rapist”. In such situations X’s behaviour does
not necessarily pose a threat of harm to X or somebody else at the time X sees
Y. If X reasonably believes that Y is the “serial killer” the police are searching
for and that there is no other way of arresting Y other than confronting her there
and then, she may arrest Y and if Y resists, she may use deadly force as de-
scribed in the section to effect the arrest.
9 Section 49 only creates ground of justification Section 49 creates a statu-
tory ground of justification, not a ground excluding culpability. If X relies on the
defence created in section 49 and the court rejects this defence, it means only
that X’s conduct was unlawful (unjustified). It does not mean that X is now
automatically guilty of murder. In order to ascertain whether X should be found
guilty of murder or of culpable homicide, or even not guilty, one merely applies
the same principles as where X relies on a ground of justification such as private
defence, but this defence is unsuccessful because X has exceeded the limits of
private defence. These principles were laid down by the Appeal Court in
Ntuli,158 where it was held that one merely applies the normal principles relating
to intention and negligence in order to ascertain whether X is guilty of murder
or culpable homicide.
10 X may rely on defence of ignorance of law If X has killed an alleged
criminal in the course of effecting an arrest and her reliance on the protection of
section 49 fails, X can still escape a conviction of murder by successfully rely-
ing on an alternative defence, namely that she honestly believed that the law
allowed her to act as she did; that she therefore laboured under an honest mis-
take of law, that she therefore lacked awareness of unlawfulness and therefore
lacked the intention required for a conviction of murder. The defence of mis-
take of law as created in De Blom159 can therefore, if upheld, prevent X from
being found guilty of murder. Should X, however, raise the defence of mistake
of law, she will almost certainly be found guilty of culpable homicide on the
grounds that a reasonable person in the same circumstances would not have
made the same mistake as X had made, and that X had therefore caused Y’s
death negligently.
________________________

158 1975 1 SA 429 (A).

159 1977 3 SA 513 (A). On the defence of ignorance of law, see infra V C 24.
134 CRIMINAL LAW

11 Onus of proof The courts interpreted the previous wording of section 49

in such a way that the onus of proof was on X, the arrestor relying on the pro-
tection offered by this section, to prove that her conduct met the requirements
described in the section.160 One of the pillars of criminal justice in the new
constitutional dispensation is the accused’s right to be deemed not guilty until
the state has proven the opposite.161 This consideration makes it highly improb-
able that the courts will still acknowledge the principle that the onus of proof
rests on X. However, it is submitted that there can to be no objection to placing
on X a procedural onus to create a reasonable doubt as to whether her conduct
complied with the provisions of the section. This is not an onus of proof, but
only an evidential onus of creating a reasonable doubt. X should place before
the court the factual basis of her defence, from which the court can infer that
she is relying on the defence created in the section as well as the particular
aspect or instance of the section on which she is relying.

H OBEDIENCE TO ORDERS
1 General The question arising here is whether an otherwise unlawful act
may be justified by the fact that the person when committing the act was merely
obeying the order of somebody else to whom she was subordinate. This ques-
tion arises mostly with reference to the conduct of subordinates in the defence
force and the police, but is not limited to soldiers and policemen. It may also
apply to, for example, municipal police officers.162
One must first distinguish between an act committed in obedience to a lawful
order, and one committed in obedience to an unlawful order. In the former case,
the act is justified on the ground that the subordinate is acting in an official
capacity, or because she is merely a part or an extension of the body or authority
which acts in an official capacity. Here we are concerned with the latter case
only.
2 Different possible approaches There are different approaches to the ques-
tion whether obedience to an order from a superior may justify an act.
Firstly, one may argue that the subordinate has a duty of blind obedience to
her superior’s order. According to this view, an act performed in obedience to
an order will always constitute a ground of justification. This view is unaccept-
able as far as serious crimes are concerned. Our law, like most civilised legal
systems, will not be prepared to excuse a soldier who commits rape if an officer
orders him to do so or who, like the war criminal Eichmann, commits mass
murders, merely because she acts in obedience to the orders of a superior.
Secondly, one may adopt an opposite point of view, and hold that the fact that
the subordinate obeyed an order is not a ground of justification. The objection
to this point of view is that it implies that a subordinate must, before complying
with any order issued to her, first decide for herself whether it is lawful or
unlawful. This would hardly be conducive to sound discipline in the various
armed forces.
________________________

160 Britz 1949 3 SA 293 (A) 303–304; Swanepoel 1985 1 SA 576 (A) 587–588.
161 S 35(3)(h) of the Constitution.
162 Mostert 2006 1 SACR 560 (N) 564a.
 UNLAWFULNESS (JUSTIFICATION) 135

3 Manifest unlawful order may not be obeyed There is still a third pos-
sible approach to the question whether an act is justified because, in performing
the act, the actor obeyed an order from a superior. According to this third
approach one should adopt a middle course between the first and second
approaches described above. By doing this, one attempts to satisfy the demands
of morality, while at the same time acknowledging the need for discipline in the
various branches of the armed forces. It is this middle-course approach which is
the most acceptable one.
A middle course was indeed adopted in the important decision of Smith.163 In
this case the court rejected both the first and the second approaches set out
above, which it described as the “two extreme propositions of law”, and opted
for a middle course by adopting and applying the following rule: a soldier is
compelled to obey an order only if the order is manifestly lawful. If it is mani-
festly unlawful, she may not obey it; and if she does, she acts unlawfully. This
test has been applied in later South African decisions.164
The middle-course approach was obviously favoured by the compilers of the
Constitution, because section 199(6) of the Constitution provides that no
member of any security service may obey a manifestly illegal order.
According to the general proportionality requirement applicable to grounds
of justification, the defence of obedience to orders will succeed only if the sub-
ordinate does not bring about more harm than necessary in order to execute her
order.165
4 General requirements for defence to succeed The general requirements
for the defence to succeed are the following:
(a) the order must emanate from a person lawfully placed in authority over X;
(b) X must have been under a duty to obey the order;
(c) the order must not be manifestly unlawful; and
(d) X must have done no more harm that is necessary to carry out the order.166
The latter requirement is analogous to the corresponding requirements in other
grounds of justification such as private defence167 and necessity.168
5 Deciding whether order is manifestly unlawful In deciding whether an
order is manifestly unlawful, one must consider the content of the order and the
circumstances in which it was given, and then ask oneself whether a reasonable
soldier in the position of X would have regarded the order as lawful or unlawful.
Thus it was, for example, held in the USA that an order to a soldier standing
guard to shoot anybody who used offensive language was manifestly unlawful,
and that a soldier charged with murder might not invoke obedience to such an

________________________

163 (1900) 17 SC 561.

164 Banda 1990 3 SA 466 (B); Mohale 1999 2 SACR 1 (W); Mostert supra 565–566.
165 Mayers 1958 3 SA 793 (R) 796–797.
166 Mostert 2006 1 SACR 560 (N) 564d–e; 567–568. For an analysis of the decision in
Mostert, see Bhamjee and Hoctor 2006 Obiter 663.
167 Supra IV B 4(c).
168 Supra IV C 6(h).
136 CRIMINAL LAW

order as a defence.169 It was also held in the USA that an order to assist an offi-
cer in committing rape fell within the same category.170 An aid in the appli-
cation of this test is to enquire whether that which the subordinate is ordered to
do falls within the scope of her normal duties.
6 Mistake relating to the nature of the order If the subordinate knows that
the order is unlawful, she cannot raise obedience as a ground of justification.171
It is conceivable that in many cases where a subordinate has obeyed a superi-
or’s unlawful order she may raise the defence of mistake, if she believed that
the order was lawful. Here she was not aware of the unlawfulness and therefore
had no intention to commit the crime.172
7 Subordinate acting in necessity It is also conceivable that the subordinate
may rely on necessity as a ground of justification if her superior threatens her
with harm which is not less than the harm she is ordered to inflict upon another.
In such a case the lawfulness of the subordinate’s conduct will, of course, be
judged according to the rules relating to necessity set out above.173
8 Judging response by victim of subordinate’s act The question arises how
a situation such as the following should be treated by the law: Z, a superior
officer, issues an order which is unlawful, although not manifestly so, to her
subordinate, X, to perform a certain act against Y, for example to arrest or
assault Y. X executes the order. Because the order is not manifestly unlawful,
X’s act is lawful. However, Y resists X’s act. As was pointed out above in the
discussion of private defence,174 a person can act in private defence only against
an unlawful attack on her. If the attack on her is lawful, and she resists such an
attack, she acts unlawfully. After all, two people who fight each other cannot
both act lawfully. Neither can the law assume that if two persons are locked in
combat they both act unlawfully but that the winner will not be punished; such
an approach will amount to “an institutional recognition of anarchy and the sur-
vival of the fittest”175 – in other words, the “law of the jungle”. Does it now fol-
low that Y in the present set of facts is guilty of assault (or even murder, if she
kills X) because she resisted X’s attack on her?
It is submitted that the question as to Y’s liability should be answered as
follows: Because X’s act was lawful, Y’s act must be deemed to be unlawful.
However, Y should escape liability on the ground that, although her act was
unlawful, she nevertheless lacked culpability. The absence of culpability is
explained by applying the normative theory of culpability:176 the law cannot
reasonably expect of a person in Y’s position to act otherwise.

________________________

169 United States v Bevans 24 Fed Cases 1183 No 14, 589 (CC Mass 1816).
170 State v Roy 233 NC 558 64 SE 2nd 840 (1951).
171 Shepard 1967 4 SA 170 (W) 177–178; Sixishe 1992 1 SACR 620 (CkA) 626b–c.
172 Andreas 1989 2 PH H35 (SWA); and cf Mule 1990 1 SACR 517 (SWA) 528–529.
173 Supra IV C.
174 Supra IV B 3(a).
175 Le Roux 1996 Obiter 247 256. Le Roux argues that the subordinate’s defence should
not be viewed as a ground of justification, but as a ground for the exclusion of her culp-
ability. This argument relies on an application of the normative theory of culpability.
176 Infra V A 9.
 UNLAWFULNESS (JUSTIFICATION) 137

I DISCIPLINARY CHASTISEMENT177

1 General Parents may, in the course of maintaining authority over their

children and in the interests of the child’s education, punish their children
with moderate and reasonable corporal punishment.178

2 Teachers no longer have the right to impose corporal punishment

Before the coming into operation of the Constitution not only parents, but also
teachers and people in loco parentis, such as people in charge of school hostels,
had the right to punish the children in their charge with moderate and reason-
able corporal punishment in order to maintain authority and discipline.179 How-
ever, the right of teachers to chastise children in their care physically has been
abolished by section 10 of the South African Schools Act 84 of 1996. The sec-
tion provides that no person may administer corporal punishment at a school to
a learner, and that any person who contravenes this provision is guilty of an
offence and liable on conviction to a sentence which could be imposed for
assault. Apart from these legislative provisions, it can be accepted with certainty
that any such “right” would be unconstitutional. 180
In Christian Education South Africa v Minister of Education181 the facts were
the following: A private Christian organisation administered a private school
and believed that in terms of their Christian principles the physical chastise-
ment of children at school was lawful. Parents who enrolled their children at
the school had to consent to their children being subjected to physical chastise-
ment if they contravened rules. The organisation applied for an order exempt-
ing their school from the provisions of section 10 of the South African Schools
Act, which would mean that they would have the right physically to chastise
pupils in the school. The organisation argued that the right to religious freedom,
provided for in section 31 of the Constitution, allowed them to be exempted
from the provisions of section 10, which prohibited physical chastisement in
schools. However, the Constitutional Court held that the order requested by the
private organisation could not be granted and that the private school was
therefore not exempted from the provisions of section 10. The court held that
even if one assumed that section 10 infringed upon parents’ right to religious
freedom, such infringement was justified, because even private schools exer-
cised their functions for the benefit of the public interest.

________________________

177 See generally Pete 1994 SACJ 295; Bekink 2006 SACJ 173. Discussions of this subject
dating from the period before the coming into operation of the Constitution are mostly
outdated and may be left out of consideration, since the provisions of the Bill of Rights
in ch 2 of the Constitution have had an important impact on this ground of justification,
as will be apparent from the discussion in the text.
178 Voet 5 1 2, 47 10 2; Grotius De Jure Belli ac Pacis 2 5 4; Huber HR 1 9 12; Van
Leeuwen RHR 1 13 1; Van der Linden 1 4 1; Scheepers 1915 AD 337 338; Theron
1936 OPD 166 176; Booysen 1977 2 PH H148 (C); Lekgathe 1982 3 SA 104 (B) 109A.
179 See generally the authorities referred to in previous footnote.
180 Such “right” would be incompatible with the rights enshrined in ss 10, 12 and 28(1)(d).
181 2000 4 SA 757 (CC).
138 CRIMINAL LAW

3 Parent’s right of chastisement In terms of the common law parents have

a right to chastise their own children, provided the chastisement is moderate
and reasonable, in order to maintain authority and discipline.
It is submitted that this right of parents is constitutional. This right is closely
connected with parents’ rights and duties in respect of the education and up-
bringing of their children. Thus far the courts have not yet held this right to be
unconstitutional. Any prohibition of a parents’ right to chastise their children
even moderately would, in any event, be almost impossible to enforce. Pro-
ponents of the abolition of this right tend to confuse moderate chastisement of
children with child abuse, which is something completely different. Child abuse
relates to a continuous and mala fide maltreatment of children or the infliction
of cruelty on them over a prolonged period of time. Disciplinary chastisement
relates to the occasional slap on the thigh or the buttocks of a child who contin-
ually and intentionally misbehaves, with the bona fide motive of the parent to
improve the child’s manners and inculcate acceptable social behaviour.
In South Africa people – and more specifically people who are parents – who
are in favour of such abolition, are far in the minority. The large majority of
black people in the country are in favour of retaining the right of parents to
chastise their children moderately. Experience elsewhere confirms that abolish-
ing parents’ right to chastise their children even moderately leads to a form of
social ostracism of families with children, because of the unruliness of the chil-
dren. This is already apparent in the phenomenon of certain hotels abroad
which refuse to accommodate families with children.
Parents are legally entitled to chastise their children only if the chastisement
does not exceed the bounds of moderation.182 What is “moderate” depends on
the circumstances of each case, such as the character of the offence, the age,
gender, build and health of the child, and the degree of force applied.183 The
chastisement must furthermore be reasonable. The child must have acted
wrongfully, or threatened to act wrongfully. The child must have deserved the
chastisement.184 A parent who gives her child a hiding, not because the child
did anything wrong, but merely “to ensure beforehand that the child will always
be obedient”, acts unreasonably and unlawfully. It follows that it is important to
consider the parent’s motive (which is a subjective factor). The parent must
chastise the child in order to educate the child or to censure or correct the child
for an actual misdeed. If she punishes the child merely to give vent to her rage
or out of sadism, her conduct is not justified.
4 Spouse and employer have no right of chastisement A husband does not
have the right to impose physical chastisement on his wife, nor does an em-
ployer have such a right in respect of an employee.185

________________________

182 Tshabalala v Jacobs 1942 TPD 310; Hiltonian Society v Crofton 1952 3 SA 130 (A)
134; Booysen 1977 2 PH H148 (C).
183 Lekgathe 1982 3 SA 104 (B) 109B–C.
184 Muller 1948 4 SA 848 (O) 865; Lekgathe supra 109D.
185 Collett 1978 3 SA 206 (RA) 209.
 UNLAWFULNESS (JUSTIFICATION) 139

J EXCURSUS: TRIFLING NATURE OF ACT AS A DEFENCE

1 Description of defence If X commits an act which is unlawful but the
degree in which she contravenes the law is minimal, that is, of a trifling nature,
a court will not convict her of the crime in question. The principle that comes
into play here, is that embodied in the maxim de minimis non curat lex, which
means “the law does not concern itself with trifles”. Applying this principle, a
court would, for example, not convict X of the theft of a pin; neither would it
convict her of malicious damage to property if the evidence reveals that, while
trimming a hedge separating her property from that of her neighbour, she
merely cut a few twigs off the hedge on her neighbour’s side.186
The most important decision concerning the de minimis rule is Kgogong:187
In this case the Appeal Court refused to uphold a conviction of theft where the
evidence was that X had merely taken and removed a small piece of paper
without any value and merely regarded as waste paper. Whether the trifling
nature of the act or of the infringement of the law should be regarded as a
complete defence or merely a ground for mitigation of punishment depends
upon the circumstances of each individual case.188
The question arises exactly where in the dogmatic structure of criminal liabil-
ity this defence should be classified. It is tempting to classify it as a ground of
justification, but it is submitted that this view is incorrect.189 If this defence is
upheld, it means that X has committed an act which complies with the defini-
tional elements of the crime and which is also unlawful and culpable, but that X
is nevertheless afforded a defence because, from the point of view of practical
legal policy, the courts’ time should not be wasted with mere trivialities, and
the law therefore discourages charges based on such trivialities.190 In South

________________________

186 This is what happened in Dane 1957 2 SA 472 (N).

187 1980 3 SA 600 (A).
188 Cases in which this defence succeeded, include Bester 1971 4 SA 28 (T) (the court –
incorrectly, it is submitted – refused to convict X of assault after he had boxed an 11
year old boy on the ears); Van der Merwe 1974 4 SA 310 (E); Van Zyl 1975 2 SA 489
(N); Nene 1982 2 SA 143 (N) (transporting goods for a consideration); and Kgogong
supra; Visagie 2009 2 SACR 70 (W). Cases in which the defence was rejected, include
Van Wyk 1974 1 SA 36 (A) (riding a motor-cycle without the owner’s consent); Dan-
ster 1976 3 SA 668 (SWA) (dealing in dagga); Magidson 1984 3 SA 825 (T) 832–833
(banknotes reproduced on plastic keyring tags); Nedzamba 1993 1 SACR 673 (V) (two
blank cheque forms stolen with purpose of using them to commit fraud); Tshabalala
2002 1 SACR 605 (W) 606h–i, in which it was held that theft of “only” R59,66 was not
trivial.
189 For a similar view, see Strauss 1970 SALJ 483; Labuschagne 1973 Acta Juridica 291
303–304; Hoctor 2004 SACJ 394 395.
190 The reason this defence does not, if upheld, justify X’s conduct is that there is no higher
or more important value which is protected by the commission of the act. To steal a pin
is just as unlawful as to steal a motor car. Unlawfulness cannot, like culpability, be
“graded” into degrees. An act is either lawful or unlawful. If X gives Y only a slight
slap on her back without her consent, she acts unlawfully, despite the more or less triv-
ial nature of the “assault”, and Y is therefore entitled to act in private defence against X.
If the defence presently under discussion is treated as a ground of justification, X’s slap
would have to be regarded as lawful. This would mean that Y would not have the right to
defend herself against X in private defence. Such a view of the law would be untenable.
140 CRIMINAL LAW

Africa in particular, the criminal courts are already inundated with charges of
serious crimes, with which they can hardly cope.
(Strictly speaking, therefore, this defence ought not to be discussed either
under unlawfulness or culpability. The only reason it is discussed in this chap-
ter is for the practical consideration that it would be unrealistic to devote a
whole separate chapter of this book to this simple defence which deals merely
with trivialities.)

K EXCURSUS: ENTRAPMENT IS NOT A

GROUND OF JUSTIFICATION
1 Entrapment not a ground of justification The fact that the police set up a
trap in order to obtain evidence of X’s commission of the crime and that X
committed the crime in the course of such entrapment does not mean that X’s
conduct is justified.191 On the other hand, it does not necessarily follow that she
is guilty of the crime committed in the course of the entrapment. She may in
certain circumstances escape liability because the court may hold that evidence
regarding the entrapment is not permissible.192 In other words, entrapment may
sometimes operate as a defence via the rules of the law of evidence. Thus far,
however, our courts have not been prepared to recognise it as a defence in
terms of the substantive criminal law (and more in particular as a ground of
justification).
2 Wide meaning of the term “entrapment” Entrapment may have more
than one meaning. There is, on the one hand, the situation such as the follow-
ing: X is a person who is prone to committing a certain type of crime (such as
illicitly buying uncut diamonds). She is looking for an opportunity to commit
this crime. The trap (Y, in the discussion which follows) in no way influences
or incites X to commit the crime, but at most affords her an opportunity to
commit the crime. X then in fact commits the crime. On the other hand there is
a situation such as the following: X is in no way prone to committing the
offence. Y incites or persuades an initially unwilling X to commit the crime,
and X then in fact commits the crime as a result of Y’s inducement. As will be
explained below, it is now reasonably settled that in the first-mentioned type of
situation the entrapment does not afford X a defence, whereas it does in the
second one.
These two types of situations just mentioned may be described as two ex-
tremes. There are, of course, a number of other possibilities falling somewhere
between these two extremes. The question which arises is how the situations
falling between these extremes should be treated.
________________________

191 Aldridge 1991 1 SACR 611 (C); Pule 1996 2 SACR 604 (O) 607f–g; Desai 1997 1
SACR 38 (W) 41c–d, f–g; Hassen 1997 1 SACR 247 (T) 248a, 251c; Hayes 1998 1
SACR 625 (O); Dube 2000 1 SACR 53 (N) 73e; Hammond 2008 1 SACR 476 (SCA)
par 22.
192 See Nortje 1996 2 SACR 308 (C), in which X’s defence of entrapment succeeded on
this ground, as well as s 252A of the Criminal Procedure Act 51 of 1977. This section is
discussed infra par 4. For a detailed discussion of the provisions of s 252A, see Kotze
2010 1 SACR 100 (SCA).
 UNLAWFULNESS (JUSTIFICATION) 141

3 Entrapment necessary in certain cases There are certain crimes in respect

of which there are no direct victims, and accordingly no complainants laying
charges. These crimes are usually committed in secret, so that there are no (or
very few) witnesses. Furthermore, these crimes are often committed by organ-
ised syndicates with cunning and sophisticated perpetrators. Examples that come
to mind of crimes of this nature are those relating to the illicit trading in uncut
diamonds, unwrought gold or other precious stones, drug offences and corrup-
tion. Not only in South Africa, but across the world, it is acknowledged that the
police are best able to trace the commission of these crimes by making use of
traps.
4 Provisions of section 252A of the Criminal Procedure Act In 1994 the
South African Law Commission investigated the application of the trapping
system in South Africa. In its report193 the Commission recommended that the
use of the trapping system be retained, but that its application be subjected to
greater judicial control. This should, according to the Commission’s recom-
mendations, be achieved not through the recognition of entrapment as a defence
in substantive criminal law, but by the acceptance of an evidentiary exclusionary
rule granting courts the power to exclude evidence of entrapment. The govern-
ment accepted the Commission’s recommendations, and this resulted in the in-
sertion of section 252A into the Criminal Procedure Act 51 of 1977. The section
is very widely worded. It gives a court a wide discretion to decide whether evi-
dence of entrapment should be allowed.
The section is very long and will not be set out fully here. Briefly stated, it
provides that the police may make use of a trap in order to uncover the com-
mission of a crime, and that evidence relating to what happened in the course of
the entrapment shall be admissible, provided that the conduct of the police (Y)
does not go beyond providing an opportunity for X to commit a crime. In order
to determine whether Y’s conduct went beyond providing X an opportunity to
commit a crime, the court may take a great number of factors, enumerated in
subsection (2), into consideration, such as the nature of the crime; the type of
inducement used by Y and the degree of its persistence; whether Y’s conduct
amounted to an exploitation of X’s emotions or economic circumstances; and
whether Y had a suspicion that X had previously committed a similar crime.
Even if the court finds that Y’s conduct went beyond merely affording X an
opportunity to commit a crime, it may nevertheless allow evidence concerning
the entrapment if it finds that the evidence was not obtained in an improper and
unfair manner and that the admission of such evidence would not render the trial
unfair or otherwise be detrimental to the administration of justice. In deciding
whether there was compliance with the standard just mentioned, the court has
to weigh up the public interest against X’s personal interest, and may take a
number of considerations enumerated in subsection (3) into account, such as
the nature and seriousness of the crime; whether it would otherwise be difficult
to uncover the commission of the relevant type of crime; and whether there has
been any infringement of any fundamental right contained in the Constitution.

________________________

193 SA Law Commission The Application of the Trapping System Working Paper 51 Project
84 (1994).
142 CRIMINAL LAW

The provisions of section 252A are so wide that it was, strictly speaking,
unnecessary to enact the section, since the courts would in any event have taken
the considerations mentioned therein into consideration. It is nevertheless sub-
mitted that one of the most important practical implications of the section is the
following:
• If Y merely affords X an opportunity to commit a crime, without there being
any incitement or persuasion, the chances of X having a defence are slender.
• If, however, there is an unwillingness on the part of X which Y has to over-
come by inciting, instigating or persuading X to commit the crime, the
chances of X having a defence are great.194
Subsection 5(a) of section 252A contains an important provision: according to
this subsection, a police official who sets a trap in order to uncover the commis-
sion of a crime is not criminally liable in respect of her conduct relating to the
trap, provided she acted in good faith.195
5 Possible future developments The recommendations of the South African
Law Commission that the defence of entrapment be treated not as part of the
rules of substantive criminal law but rather via the rules of the law of evidence,
as well as the provisions in section 252A, do not necessarily constitute the last
word regarding the effect of entrapment on criminal liability. The topic must
also be considered in the light of the Bill of Rights in the Constitution, and
more specifically rights such as the right to privacy,196 the right to “adminis-
trative action that is lawful, reasonable and procedurally fair”197 and the right to
a fair trial.198 The Constitutional Court has not yet considered this matter.199
The possibility cannot be excluded that some day entrapment might still in
certain circumstances be recognised as a defence in substantive criminal law, as

________________________

194 This explains the acquittal in Nortje supra (see especially 320) and Hayes 1998 1
SACR 625 (O) (see especially 632f–h). Cf also Desai 1997 1 SACR 38 (W) 42h–i;
Odugo 2001 1 SACR 560 (W). See also 640e–f; Matsabu 2009 1 SACR 513 (SCA) par
16; Van der Berg 2009 1 SACR 661 (HHA) par 31; Lachman 2010 2 SACR 52 (SCA);
Zurich 2010 1 SACR 171 (SCA)
195 In Ohlenschlager supra 749b–e and Pule 1996 2 SACR 604 (O) 608–609 it was held
that the police official who set the trap cannot escape criminal liability for her actions
during the trap. It is submitted that these two decisions on this point are incorrect, since
the courts failed properly to consider the possibility of Y’s conduct being justified by
Y’s having acted in an official capacity.
196 S 14.
197 S 33.
198 S 35(3). Cf Nortje supra 320f: “The police procedures in this case were fundamentally
unfair and the accused did not have a fair trial. As has been pointed out, it would be far-
cical to insist on the highest standards of fairness in the courts while at the same time
tolerating a low standard of fairness in police procedures which take place before an ac-
cused person reaches the court.”
199 In Hassen 1997 1 SACR 247 (T) 250g–h the Transvaal court held that “it was correctly
argued . . . that the setting of a trap can under certain circumstances constitute a vio-
lation of a person’s right to a fair trial . . . and that such a violation should under certain
circumstances result in an acquittal”. See also Nortje 1996 2 SACR 308 (C) 320f and
the obiter dicta in De Bruyn 1992 2 SACR 574 (Nm) 582 and Mendez v Kitching 1995
2 SACR 634 (E) 647a–c.
 UNLAWFULNESS (JUSTIFICATION) 143

is the case in the United States.200 In any event, it seems artificial to refuse to
regard entrapment as a defence in terms of substantive criminal law, and yet give
a court the power to exclude evidence relating to the entrapment. The same
result can be reached by treating entrapment in appropriate cases as either a
ground of justification or as a defence excluding culpability. In treating entrap-
ment in this way the same criteria presently used to decide whether evidence of
entrapment is permissible can be applied. It is possible to treat entrapment as a
defence excluding culpability by applying the normative theory of culpability.
This means that a court would argue as follows: although X acted unlawfully
and intentionally, her conduct is nevertheless excused because the law cannot
reasonably expect her to have acted differently.201

________________________

200 In the USA the courts are prepared to recognise entrapment as a defence in certain cir-
cumstances. There are, generally speaking, two broad approaches towards the defence,
viz the subjective and the objective. According to the subjective approach, X has a
defence because, as the court stated in the authoritative judgment in Sorrels v United
States (1932) 287 US 435 441, X “[had] no previous disposition to commit it but . . . the
agent lured defendant, otherwise innocent, to its commission by repeated and persistent
solicitation . . .” According to the objective approach, the conduct of the police is
judged objectively, and the test is whether the conduct of the police would have per-
suaded a fictional innocent person, ie, one not predisposed to commit the crime, to the
commission of the crime. (See Sorrels v United States supra 454–459; Sherman v Unit-
ed States (1958) 356 US 369.) In England entrapment is no defence – McEvilly and Lee
[1979] 60 Crim LR 150 155; Mealy and Sheridan [1974] Crim App R 59; Sang [1979]
2 All ER 1222 (HL).
201 Le Roux 1997 SACJ 3. The basis of X’s defence would then be the same as in the
defence of exculpatory necessity (supra IV C 5; infra V G ). As to the normative theory
of culpability, see infra V A 9.
 CHAPTER
V

CULPABILITY

A REQUIREMENT OF CULPABILITY IN GENERAL

1 Introduction The mere fact that a person has committed an act which
corresponds to the definitional elements of the crime and which is unlawful is
not sufficient to render him criminally liable. It is further required that X’s con-
duct be culpable. (The courts normally refer to culpability as mens rea. This
Latin expression literally means “guilty mind”.) By “culpability” is meant that
there must, in the eyes of the law, be grounds for blaming X personally for his
unlawful conduct.
The whole question of culpability may be reduced to one simple question,
namely “could one in all fairness have expected X to avoid the wrongdoing?” If
the answer to this question is “no”, there is no culpability. Thus, it is the re-
quirement of culpability which prevents a mentally ill person or a young child
from being criminally liable for his wrongdoing; because of his lack of insight
or self-control one cannot in fairness expect him to act in accordance with the
rules of the law.
Intention is included in the concept of culpability. Accordingly, if, because of
a mistake, X lacks intention, he also lacks culpability. This will become clear if
we consider the following two examples:
(a) On leaving a gathering, X takes a coat, which he genuinely believes to be
his own from the row of pegs in the entrance hall of the building. The coat in
fact belongs to Y, although it is identical to that of X. But for the requirement
of culpability, X would be guilty of theft.
(b) X throws a bottle through a window, intending it to land on a rubbish
dump next to the house, to which access is forbidden. Y, an escaping prisoner
fleeing the police, of whose existence X is completely unaware, happens to run
past the window at that precise moment, and is struck on the head by the bottle.
But for the requirement of culpability, X would be guilty of assault.
It is therefore clear that it is the requirement of culpability which ensures that
nobody is punished for harm which he commits accidentally, or of which he
was not or could not have been aware.
2 Culpability and unlawfulness The question of culpability arises only once
it has been established that there was an unlawful act. It would be nonsensical
145
146 CRIMINAL LAW

to attach blame to lawful conduct. The unlawfulness of the act is determined by

criteria which are applicable to everybody in society, whether rich or poor,
clever or stupid, young or old. This is the reason why it is just as unlawful for
somebody who is poor to steal as for somebody who is rich and why it is just as
unlawful for psychopaths, who find it very difficult to control their sexual
desires, to commit sexual crimes as it is for normal people. Criteria employed to
determine unlawfulness do not relate to X’s personal characteristics.
However, when the question of culpability arises, the picture changes: the
focus now shifts to the perpetrator (X) as a person and as an individual, and the
question here is whether that particular person (X), in the light of his personal
aptitudes, gifts, shortcomings and knowledge, and of what the legal order may
fairly expect of him, can be blamed for his wrongdoing. If this is the case, it
means that the wrongdoing can be attributed to X personally; he is “charged
with the account” arising from the wrongdoing. It is possible to construe some
blameworthy mindset on his part.
3 Terminology Before the requirement of culpability is discussed in detail, it is
first necessary to remove some possible misconceptions relating to its terminology.
In this book the requirement presently under discussion is described as culp-
ability. The term describing this requirement which the courts almost invariably
use, is mens rea. The Latin mens rea is a technical term. The very fact that this
term, rather than an English equivalent, is still used today, proves that it is not
regarded as readily translatable into or explicable in simple English. It may be
translated literally as “a guilty mind” but, as will be seen in the discussion of
this requirement, a person may be said to have mens rea and be guilty of a
crime even though he is unaware that he is committing a crime. This is the case
if X is convicted of a crime requiring mens rea in the form of (inadvertent or
unconscious) negligence. It is therefore clear that mens rea is an unfortunate
and ambiguous expression. It is not surprising that writers on criminal law often
criticise its use.1 Most modern writers on criminal law eschew the expression
mens rea in favour of some other term which is more readily understandable.2
The criticism levelled at the use of the term mens rea may be avoided if this
requirement is described as “culpability”. This word is derived from the Latin
word culpa, which means “blame” – a concept which goes to the root of the
present requirement. Another expression that may be used to describe the
present requirement is “blameworthiness” – a word which means the same as
“culpability”.

________________________

1 “There is no term fraught with greater ambiguity than that venerable Latin phrase that
haunts Anglo-American criminal law: mens rea” – Fletcher 398.
2 Burchell and Milton ch 29–37 use the term “fault”. The drafters of the draft English
criminal code and the Australian model criminal code also use the term “fault”. This is a
much better term than mens rea, but has the disadvantage of not readily conveying the
crux of what this element of liability means. “Fault” is – especially for the lay person –
not necessarily synonymous with the idea of blameworthiness or culpability, which are, it
is submitted, more accurate and acceptable descriptions. One may also make a “fault”
unintentionally or without negligence. “Culpability” is the term referred to in both the
American Model Penal Code (eg s 2.02) and the new draft Canadian Penal Code (eg
s 2(4) ff).
 CULPABILITY 147

Just as the well-known grounds excluding unlawfulness are known as grounds

of justification, so it is customary to refer to grounds excluding culpability
(such as mistake) as excuses.
4 Culpability presupposes freedom of will3 Culpability presupposes that
man is free to overcome the limitations of his nature and to choose whether to
engage in conduct for which he will be held liable. If one adopts a strictly
deterministic point of view, accepting that all man’s actions are predetermined
by, for example, his genetic and biological make-up, or by the social or climatic
milieu in which he grew up, there can be no place for the requirement of culp-
ability: one must then accept that man’s conduct is the result of blind causal
processes. If this view were adopted, there would be no point in praising some-
one for meritorious conduct; there would similarly be no point in reproaching
him for misconduct. The whole basis of criminal law would collapse: one
would then have to accept that a person’s commission of a crime was some-
thing over which he had no more control than he had over his contracting a dis-
ease. Just as one would not reproach him for catching a disease, one would not
blame him for committing a crime. It would be as senseless to punish some-
body for a crime as it would be to punish him for being ill.
Whether man’s will is indeed free is a philosophical question. Whatever
answers philosophers might have given or may still give to this question, the
view of most modern writers on criminal law is that, for the purposes of deter-
mining criminal liability, one simply has to accept that man’s will is free, des-
pite the fact that this assumption is not susceptible of empirical proof. Without
such an assumption there is no room for culpability and criminal liability.
Freedom of will must, for the purposes of criminal liability, be construed as
man’s ability to rise above the forces of blind causal determinism; that is, his
ability to control the influence which his impulses and passions and his envi-
ronment have on him. In this way he is capable of meaningful self-realisation,
that is, of directing and steering the course of his life in accordance with norms
and values – something which an animal is incapable of doing since it is
trapped by the forces of instinct and habit. For the purposes of criminal law in
general, and of determining culpability in particular, one should merely be able
to say that, in the particular circumstances and in the light of our knowledge
and experience of human conduct, X could have behaved differently; that, had
he used his mental powers to the full, he could have complied with the provi-
sions of the law. The normal sane person who is no longer a child may there-
fore be held responsible for his deeds and be blamed for his misdeeds. This is
also the reason why young children and mentally ill people are not punished
when they perform unlawful acts. This will be explained more fully in the
discussion below of criminal capacity.
5 Legal and moral culpability Culpability as a prerequisite for liability
refers to legal culpability as opposed to moral culpability. For the purposes of
legal terminology, the term “culpability” is always used in the context of legal
norms. Legal and moral norms often coincide, but do not necessarily always do
________________________

3 Rumpff Report 2 4; Hoctor 2004 SALJ 304 309–311; Fletcher 801–802; Jescheck and
Weigend 407 ff; Schönke-Schröder n 108–110 ad s 13; Politoff and Koopmans 24–27.
148 CRIMINAL LAW

so. Legal norms are binding even though they may not be regarded as being
buttressed by a moral norm. This is the reason why a person may be legally
culpable even when he does not feel that he has done anything blameworthy.
People who regard their private religious, political or moral convictions as more
important than the provisions of the law and who knowingly transgress these
provisions, cannot escape liability on the ground of their personal convictions.
Furthermore, the blame inherent in culpability does not relate to X’s character,
personality or general attitude towards life; it is coupled to a specific act.4 If X
has not committed a specific act recognised by the law as a crime, he cannot be
legally blamed and punished, no matter how wicked or depraved his general way
of life may be.5
6 Two forms of culpability: intention and negligence There are two forms
of culpability in our law, namely intention and negligence. They are sometimes
referred to by their Latin names, namely dolus and culpa respectively.
7 The principle of contemporaneity6 The culpability and the unlawful act
must be contemporaneous. No crime is committed if the unlawful act is com-
mitted at a certain time without culpability, and the culpability is present at a
later stage without an unlawful act taking place simultaneously. Nor is any
crime committed if on the first occasion there is culpability without an unlawful
act and on the second occasion an unlawful act unaccompanied by culpability.
This is the reason why X does not commit murder if he kills Y accidentally and
later expresses joy at having killed him. For the same reason X will not be
guilty of murder if, whilst he is driving to Y’s house in order to kill him there,
he negligently runs over somebody, and it later transpires that the deceased is Y.
In Masilela7 X assaulted Y and strangled Y, intending to kill him; then, be-
lieving him to be dead, he threw his body onto a bed and ransacked the house.
He then set fire to the bed and the house and disappeared with the booty. Y was
in fact still alive after the assault and only died in the fire. When charged with
having murdered Y, it was argued on behalf of X that there were two separate
acts; that during the first act there was an intention to kill without an act of killing
and during the second act an act of killing without intention (because to dispose
of what was believed to be a corpse cannot be equated with an intention to kill a
human being). This argument was rejected by the Appeal Court on the ground

________________________

4 On the difference between “Tatstrafrecht” (criminal liability based upon the commission of
an act) and “Täterstrafrecht” (criminal liability based upon the characteristics of the spe-
cific perpetrator), as well as the rejection of so-called “Lebensführungsschuld” (culpability
based upon a person’s “way of living”), see Jescheck and Weigend 423–424; Schönke-
Schröder n 106 ad s 13; Wessels ch 10 par 400–404; Hazewinkel-Suringa-Remmelink 195.
5 The reason for this is the retributive character of criminal law. The object of the retribu-
tion is not the way in which X’s personality has developed or his “life-style” (“what he
is”), but a specific unlawful act.
6 On this principle, see Masilela 1968 2 SA 558 (A) 571 574; Mtombeni 1993 1 SACR 591
(ZS). It is submitted that the judgment in Goosen 1989 4 SA 1013 (A) does not detract
from this principle. Goosen’s case is discussed infra V C 19.
7 1968 2 SA 558 (A).
 CULPABILITY 149

that the two acts were so closely related to each other as regards inter alia time
and place, that X’s actions in reality amounted to a single course of action.8
8 No replacement for culpability – rejection of “taint doctrine”9 The taint
doctrine may be defined as follows: If a person engages in an unlawful or im-
moral activity, he is criminally liable for all the consequences flowing from this
activity, irrespective of whether he acted intentionally or negligently in respect
of the consequences. The unlawful or immoral nature of the activity colours or
“taints” the consequences, so that the person may be held criminally liable for
the consequences without requiring culpability (intention or negligence) in re-
spect of the consequences. In this way a person may be liable for a crime with-
out any culpability on his part. In South Africa the taint doctrine is also known
as the doctrine of versari in re illicita, or simply “the versari doctrine”.
In the canon law of the Middle Ages, according to this doctrine, X’s liability
did not depend on whether the harmful consequence was foreseen or even, for
that matter, foreseeable. If, for example, X lawfully shoots at a wild bird and
the bullet accidentally hits Y, of whose presence he is unaware, X lacks culp-
ability. If, however, X shoots at a fowl belonging to another person without
such person’s permission, or hunts on another’s land without his permission,
and the bullet hits Y (of whose existence X is unaware), X is guilty of murder,
for he has engaged in an unlawful act and is liable for all the consequences
flowing from it.10 The blameworthiness of the unlawful conduct is projected
onto the causing of Y’s death.
The operation of the taint doctrine can be illustrated by the following fictitious
example: X drives his motor-car at night at high speed. The road makes a sharp
turn to the right. Because of inattention and the high speed at which he is travel-
ling, X does not succeed in turning his motor-car to the right in time. His car
accordingly leaves the road and bursts into a cornfield next to the road, where
Y, a tramp, lies asleep. It was impossible for X to see Y lying in the field. The
car passes over Y, as a result of which Y dies. Can X be convicted of culpable
homicide? If one applied the taint doctrine, the answer would be “yes”, for the
following reasons: X drove negligently, and could clearly be charged with the
statutory crime of negligent driving. X had caused Y’s death while engaged in
the commission of an unlawful act (negligent driving), and the fact that Y’s
death was not foreseeable for either X or a reasonable person is no defence,
since it is not necessary to require negligence in respect of Y’s death. X’s neg-
ligent driving taints all the acts and consequences flowing from his conduct,
and serves as a replacement of the requirement of culpability (ie, negligence in

________________________

8 See 571, 574. Masilela’s case was followed in Nyongano 1975 1 PH H42 (R). In this case
X strangled Y and, believing him to be dead, fastened his hands behind him, tied a heavy
stone to him, and hurled him into a crocodile-infested river. The court held that X had
committed murder, even though the strangulation might not have caused his death. See
also Mtombeni 1993 1 SACR 591 (ZS).
9 See in general Swanepoel passim; Burchell and Milton 370–371; Husak 69–72, who
specifically discusses this topic under the heading “Taint”; Ashworth 88–89, who dis-
cusses the topic under the headings “The principle of Correspondence” and “Constructive
Liability”.
10 Cf the examples in Swanepoel 58–59.
150 CRIMINAL LAW

respect of Y’s death).11 If one does not follow the versari doctrine, X cannot be
convicted of culpable homicide because Y’s death was not reasonably foresee-
able and X was therefore not negligent in respect of Y’s death. X could then at
most be convicted of negligent driving.
In 1965 the Appellate Division rejected the taint doctrine in Bernardus.12 The
court held that the taint or versari doctrine was in conflict with the requirement
of culpability. If X intentionally assaults Y and Y dies as a result of the assault,
the intention in respect of the assault could not serve as substitute for the neg-
ligence required for a conviction of culpable homicide. X would be guilty of
culpable homicide only if a court can infer from the circumstances that X was
negligent in respect of Y’s death.
In the overwhelming majority of assault cases the possibility of death as a
result of the assault is reasonably foreseeable, the reasonable person would guard
against this possibility of death ensuing and the person committing the assault
would therefore be guilty of culpable homicide if the victim should die. Never-
theless it is conceivable that in exceptional cases X may assault Y without
death being reasonably foreseeable. Such a case was Van As.13 In this case X
merely slapped Y, an extremely fat person, on the cheek, as a result of which Y
fell backwards and hit his head on a cement floor, lost consciousness and died.
X’s conviction of culpable homicide was set aside by the Appellate Division,
since Y’s death was not reasonably foreseeable.
9 The normative character of culpability: culpability and blame Culp-
ability is the grounds upon which, in the eyes of the law, X may personally be
blamed for his unlawful act.14 Because culpability expresses blame, it must neces-
sarily have a normative character. This means that, to determine whether X acted
with culpability, his unlawful act must be measured against a certain norm or
standard. Only if it falls short of this standard can X be blamed for his act.
If one alleges that X acted with or without culpability, one necessarily ex-
presses a value judgment. To determine culpability, one must enquire whether
the law could in all fairness have expected X to act differently – that is, lawfully.
Only if the answer to this question is “yes” may X be blamed for his act. Culp-
ability is the opposite of “merit” or “praise”, which is similarly an evaluation.
Whereas “merit” or “praise” expresses an approving evaluation, “culpability”
expresses a disapproving evaluation.
The norm against which X’s decision to act is measured, is something outside
X: X cannot be measured by his (X’s) own standards. If one were to measure X
by only his own standards (“by himself”), it would be very difficult, if not im-
possible, ever to blame a bad person for his wrongdoing: he would then always
be measured by his own “bad” or “low” standards. The standard by which X’s
decision to act must be measured in order to determine whether he may be
blamed for his wrongdoing, is an objective standard – one by which all people
are measured.
________________________

11 Two notorious examples of the early application of this doctrine by the Appellate Division
are Wallendorf 1920 AD 383 and Matsepe 1931 AD 150.
12 1965 3 SA 287 (A).
13 1976 2 SA 921 (A).
14 Hazewinkel-Suringa-Remmelink 166; Hommes 537–538.
 CULPABILITY 151

In the form of culpability known as negligence the normative character of the

culpability is indisputable: here X’s conduct is measured by the standard of
what a reasonable person in X’s position would have done at the relevant mo-
ment.15 In the form of culpability known as intention the normative character of
culpability is not so apparent. It is, in fact, accepted that the test for intention is
subjective. How is it possible to say that the test for intention is simultaneously
also normative?
The answer is as follows: In the overwhelming majority – more than 99 per-
cent – of cases in which crimes are committed intentionally, it is relatively easy
to find the grounds upon which X may be blamed for his deed. These grounds
are the following:
(a) X was aware of the circumstances which made his act correspond to the
definitional elements and rendered it unlawful;
(b) he was capable of acting in accordance with his insights into right and
wrong; and
(c) he willed the commission of the act constituting the crime.
The first ground mentioned above is known as awareness of unlawfulness. As
will be explained later in the discussion of intention,16 awareness of unlawful-
ness is an integral part of the concept of intention in criminal law; it “colours”
the intention in that it brings X’s will, which is merely a neutral factor, in closer
connection with the idea of blame. The second ground refers to the requirement
that X must have criminal capacity at the time of the commission of the act. As
will be seen later,17 such capacity forms one of the indispensable building
blocks of the culpability requirement, because without it X can never be blamed
for his act. In the absence of unusual circumstances, these three grounds or
factors are sufficient to constitute grounds for the negative or disapproving
evaluation of the act which is inherent in the idea of culpability.
There may nevertheless be unusual or exceptional circumstances that result
in these three grounds not being sufficient to constitute grounds for blaming X
for his act. X then lacks culpability, despite the fact that, while he had criminal
capacity, he committed an unlawful act with intention, including awareness of
unlawfulness. A good practical example of such a situation is where X commits
the act in a situation of necessity in the form of inescapable duress, which is so
strong that one cannot reasonably expect X to withstand the pressure to commit
the act. For example, Z orders X to kill Y and threatens to kill him (X) if he
refuses to execute the order. The surrounding circumstances are such that X
cannot escape his dilemma. If X yields to the duress and kills Y, he acts unlawfully
(because the killing of another even under coercion is a violation of the material
legal norm), but he lacks culpability despite the fact that he kills Y intentionally
(including awareness of unlawfulness).18
________________________

15 Infra V D 4, 8.
16 Infra V C 23.
17 Infra par 11.
18 Bailey 1982 3 SA 772 (A). Jansen JA asked how a court should determine the blameworthi-
ness of an accused who had killed another person under coercion yet had nevertheless
acted intentionally and with awareness of unlawfulness (797H). His answer was that it
[continued]
152 CRIMINAL LAW

Here there is no culpability because a fourth ground or prerequisite for the

existence of blame is added to the three already mentioned above. This fourth
ground is that the surrounding circumstances in which the act takes place must
be normal, or put differently, that the law could have expected of X in the
particular circumstances to have acted differently, namely to avoid the wrong-
doing. In reality the law cannot expect of somebody in the position of X in the
abovementioned example to have acted differently, because the average person
is not prepared to offer his own life for that of another.19 One may refer to this
requirement as “fair expectation”: it refers to what the law may fairly expect of
a person in X’s position.20 It is an objective criterion. This (fourth) ground for
blaming X is so seldom encountered in practice that the legal sources find it
________________________

has to adopt an objective approach, employing the average person as a criterion of what
could be expected of X. He explicitly referred to this approach as a normative one. He
said that if it could not have been expected of X to have done otherwise than to have
killed Y, he could not be blamed and had to be found not guilty; if however, it could have
been expected of him to act differently, he could be blamed (798E–F). See also the judg-
ment of Wessels JA in Goliath 1972 3 SA 1 (A) 27–37, especially 29G–H, 34G–H, 36C–
D, G–H.
19 Possibly without realising it, Rumpff JA expressed this component of the normative theory
of culpability very well in Goliath 1972 3 SA 1 (A) when he stated at 25B–C that the law
cannot demand more of X than is reasonable, and that “reasonable” in this context means
“dit wat van die gewone deursnee-mens in die besondere omstandighede verwag kan word”
(“that which can be expected of the ordinary average person in the particular circum-
stances”). This also applies to what he said subsequently (25C–D), namely that an ordin-
ary person regards his life as more important than that of another and that “(a)lleen hy
wat met ’n kwaliteit van heroïsme bedeeld is, sal doelbewus sy lewe vir ’n ander opoffer”
(“only a person who is endowed with a quality of heroism would consciously sacrifice his
life for another”). Rumpff JA declined to decide whether in the particular case before the
court the situation of necessity excluded unlawfulness or culpability (25H). It is submit-
ted that his approach amounts to treating necessity as an excuse (ie, a ground excluding
culpability). Van der Westhuizen 369, 680, Bertelsmann 1981 THRHR 413 421, Le Roux
1996 Obiter 247 256 and especially Le Roux 2002 SACJ 99 all give the same interpret-
ation to Rumpff JA’s judgment. In his minority judgment Wessels JA clearly regarded the
necessity as an excuse, ie, as a ground excluding culpability (36G–H, 38A). In Mandela
2001 1 SACR 156 (C) especially 167c–e the court likewise assumed that on a charge of
murder X may rely on necessity in the form of coercion as a ground excluding culp-
ability. Fletcher 492 emphasises that the requirement of culpability embodies a conces-
sion to human weakness. See also Fletcher 492–493: “There are two major stumbling
blocks to a value-free theory of attribution (ie, the psychological theory of culpability).
The first is the problem of negligence; and the second, the problem of excuses based on
overwhelming pressure or mental illness. In assessing claims of duress, for example, one
cannot avoid the question whether the actor should have yielded to the external pressure.
This is patently a normative issue.” On 497 he states that “. . . the primary normative
question in assessing accountability is whether the actor could fairly have been expected
to avoid committing the wrongful act”. For further authority that necessity in the form of
coercion excludes X’s culpability, and not the unlawfulness of the act, see Ashworth 225–
230; Burchell and Hunt 103; Burchell and Milton 278.
20 On this criterion, see Snyman 1991 THRHR 4; Politoff and Koopmans 47, 145. As to the
rule that one should measure X’s decision to commit an unlawful act to a standard out-
side himself, namely what the law could fairly have expected of a person in X’s position,
see Bailey 1982 3 SA 772 (A) 797G, 798F; Van Zyl 1982 THRHR 437 438–439 and
1983 THRHR 101 103; Jescheck and Weigend 428; Schönke-Schöder notes 116–119 be-
fore s 16.
 CULPABILITY 153

unnecessary to mention it expressly as one of the prerequisites for the existence

of culpability in the form of intention. This explains why it is usually accepted
that the test for intention is subjective.
The concept of culpability described above is known as the normative con-
cept of culpability.21 This concept of culpability offers a logical and persuasive
explanation from a systematic point of view of the culpability requirement. In
South Africa a growing number of legal scholars follow or advocate the nor-
mative concept or at least material aspects thereof.22 Some judgments of our
courts may be interpreted as supportive of the normative theory.23
10 Rejection of the psychological theory of culpability In criminal law
theory there are two ways of constructing culpability, corresponding to two
theories of culpability. The first is the normative concept of culpability and the
second the psychological concept of culpability. The normative concept has been
explained immediately above in paragraph 9. The psychological concept differs
from the normative concept in that the grounds for blaming X for his wrong-
doing are not investigated when determining culpability. Instead, culpability is
regarded as reflecting the psychological relationship between X and the act or
ensuing result. Culpability is accordingly regarded as the sum of all the “subject-
ive” requirements for liability. The reference to mens rea as “the mental elem-
ent of crime” in English legal literature is typical of this approach.24 Culpability
is viewed as a particular “state of mind”. According to this theory of culpability
________________________

21 On the normative theory of culpability, see Van der Merwe 1983 THRHR 33 34; Kok
1981 THRHR 66 71–73; Van Zyl 1982 THRHR 437 438–439; Bertelsmann 1974 Acta
Juridica 34 35–38; 1981 THRHR 413 418; Badenhorst 394 ff; Snyman 1979 SACJ 136
and especially 1991 THRHR 4; Bergenthuin 587–589; Bergenthuin 1985 De Jure 257 273,
275–278; 1986 De Jure 263 272–273; Mousourakis 1998 Stell LR 165 especially 173;
Fletcher 396–401, 492 ff; Jescheck and Weigend 420–422; 1975 CILSA 112 116–119;
Schönke-Schröder n 114–119 ad s 13; Maurach-Zipf ch 30 par 15 ff, 19, 31 ff; Jacobs
469; Politoff and Koopmans 47 ff; Hazewinkel-Suringa 193–194; Peters 67, 80–81; 196–
198; Hommes 535 ff; Eser in Eser and Fletcher 1 41 ff; Stribopoulos 1999 Criminal Law
Quarterly 227. For criticism of this theory of culpability, see Du Plessis 1984 SALJ 301–
323, but see Snyman’s answer in 1985 SALJ 120 to Du Plessis’s criticism. Van Oosten
1995 THRHR 361 and 568 likewise criticises this theory, whereupon Snyman 1996
THRHR 638 answered in defence of the theory.
22 Writers who support the normative theory and criticise the psychological theory, include
NJ van der Merwe 1976 SALJ 280 282; Kok 1981 THRHR 66–73; 1982 SACC 27 ff es-
pecially 32–34; DP van der Merwe 1982 THRHR 140 146; 1982 SALJ 430 435–437;
1983 SACC 33 ff; Badenhorst especially 394–413, and in general ch VI and X; Van Zyl
1982 THRHR 437–439; 1983 THRHR 100–104; Bergenthuin 536, 589 and 601; 1985 De
Jure 273 277; Alberts 1984 De Jure 115 118; Le Roux 1996 Obiter 247 (a particularly
well-founded exposition); 1997 SACJ 1 especially 16–18; 1999 Obiter 405 411; 1999
THRHR 285; Paizes 1996 SALJ 237 (although the author does not explicitly use the label
“normative theory of culpability”); Wolhuter 1996 SACJ 151 166; Mousourakis 1998
Stell LR 165 especially 173.
23 Decisions in which a measure of support for the normative theory may be found, are
Goliath 1972 3 SA 1 (A) (see the minority decision of Wessels JA 27–37, especially
29G–H; 34G–H; 36C–D, G–H); Bailey 1982 3 SA 772 (A) especially 798E–F; Barnard
1985 4 SA 431 (W) 436, 438F–G; Mandela 2001 1 SACR 156 (C) 167–169.
24 Williams Textbook 71: “Mens rea denotes the mental state (subjective element) required
for the particular crime in question. Actus reus denotes the external situation forbidden by
law – the external elements of the offence.”
154 CRIMINAL LAW

it is unnecessary to go further and to enquire whether one could in all fairness

have expected of X to have acted lawfully.
The psychological theory of culpability is the result of the strong influence of
the old, outdated positivistic legal philosophy dating from the Victorian era.25
According to positivism, culpability should not embody a value judgment; it
should have nothing to do with the idea of approval or disapproval.
The psychological theory of culpability may be criticised on various grounds.26
Firstly, in emphasising X’s state of mind to the exclusion of all else, the ad-
herents of this theory forget that it is possible for X to escape liability even
though he did have the prescribed state of mind. Intention alone does not
necessarily imply culpability. After all, one can also “intentionally do good”.27
Secondly, this theory cannot explain why crimes which require not intention,
but merely negligence, are also punishable. If the negligence is conscious28 it
may still be possible to construe some psychological relationship between the
perpetrator and the act, but this type of negligence is extremely rare and seldom
capable of being proved; in practice the overwhelming majority of cases of
negligence involve unconscious negligence. Unconscious negligence is not a
state of mind but the very reverse – the absence of any state of mind. The driver
who absent-mindedly fails to stop at a stop street, thereby causing the death of a
pedestrian, has given no thought to the consequences of his act.
Thirdly, perhaps the strongest point of criticism against the psychological
theory is that it is irreconcilable with the indisputable presence of subjective
components in the concept of wrongdoing (definitional elements plus unlawful-
ness). The psychological theory’s premise is that culpability is the receptacle of
all the “subjective” requirements for liability; it is the sum total of all the “in-
ternal” requirements for liability, whereas wrongdoing (the unlawful act) in
turn comprises all the “external” (“objective”) requirements.29 However, it was
pointed out above in the discussion of the definitional elements and of unlaw-
fulness that these two requirements or elements (which together comprise the
“wrongdoing”) also contain subjective or “internal” components.30 The same
“psychological relationship between the perpetrator and his act” which accord-
ing to the psychological theory forms the “essence of culpability”, is in fact
also an indispensable component of the definitional elements and of unlawful-
ness. In respect of quite a number of crimes, one can only determine whether
there was wrongdoing by considering X’s intention. Examples of such crimes
have already been given.31
________________________

25 Fletcher 496, 503, 512, 578; Jescheck and Weigend 203, 420; Hommes in Strafrecht in
Perspectief 166; Snyman 1985 SALJ 120 126–127.
26 See the criticism of Snyman 1985 SALJ 120 123–127; Badenhorst 395; Fletcher 396–
401, 492 ff; Jescheck and Weigend 205–206, 420; Jescheck 1975 CILSA 112 113–119;
Roxin ch 7 par 17, 21, ch 19 par 14 ff; Schönke-Schröder n 113 ad s 13.
27 “To describe an act as intentional is neither to approve or disapprove it” – Fletcher 401.
See also Paizes 1996 SALJ 237 258.
28 On conscious negligence, see infra V D 14.
29 Goliath 1972 3 SA 1 (A) 11B–C; Ex parte Minister van Justisie: in re S v SAUK 1992 4
SA 804 (A) 808F–G.
30 Supra III A 7–8 (definitional elements) and IV A 10 (unlawfulness).
31 Supra III A 7–8.
 CULPABILITY 155

11 Culpability and criminal capacity Once the requirement of culpability

is complied with, it follows that in the eyes of the law there are grounds for
blaming X personally for his unlawful conduct. One of these indispensable
grounds is that X must have criminal capacity. Briefly, it means that X must
have the mental capacity or ability to distinguish between right and wrong and
to conduct himself in accordance with this appreciation. In practice it means
inter alia that he must be neither a child nor suffering from a mental illness
when he commits the crime.
It has sometimes been alleged that criminal capacity is a separate requirement
for liability apart from the requirement of culpability.32 This is incorrect.
Capacity is not a separate, independent requirement, but forms part of the re-
quirement of culpability: without a perpetrator who has criminal capacity no court
can come to the conclusion that such a perpetrator is to be blamed for what he
did. Blameworthiness is, after all, the essence of culpability. Capacity is an
indispensable component of culpability in its true sense, that is, not merely
intention or negligence, but the totality of the grounds upon which X may fairly
be blamed in the eyes of the law for what he did.33 The reason for the require-
ment of capacity is not to assist the court to find out whether X had intention,
since a person who lacks capacity (such as a six-year-old child) can also act
intentionally. There is also the following reason why capacity should not be
treated as a requirement distinct from culpability: As will be seen below,34 the
intention must relate to all the other elements of liability, except, of course, the
culpability requirement itself. This means that it must relate to the conduct, the
definitional elements and the unlawfulness. If capacity is treated as an element
of the crime distinct from culpability, it would mean that the intention must
relate also to the capacity. This would not make sense.
Before embarking on a discussion of the two “forms of culpability”, namely
intention and negligence, it is necessary first to discuss criminal capacity.

B CRIMINAL CAPACITY
(i) THE CONCEPT OF CRIMINAL CAPACITY
1 Meaning of “criminal capacity” Before a person can be said to have
acted with culpability, he must have had criminal capacity35 – an expression
often abbreviated simply to “capacity”. A person is endowed with capacity if he
has the mental abilities required by the law to be held responsible and liable for
his unlawful conduct. It stands to reason that people such as the mentally ill
(the “insane”) and very young children cannot be held criminally liable for their
unlawful conduct, since they lack the mental abilities which normal adult
people have.

________________________

32 Mkize 1959 2 SA 260 (N) 264D–E; Johnson 1969 1 SA 201 (A) 204E; Burchell and
Milton ch 24.
33 Engelbrecht 2005 2 SACR 41 (W) par 455; Hoctor 2004 SALJ 304 311.
34 Infra IV C 13, 14.
35 Mahlinza 1967 1 SA 408 (A) 414G–H; Lesch 1983 1 SA 814 (O) 823A–B; Campher
1987 1 SA 940 (A) 965D–E; Laubscher 1988 1 SA 163 (A) 166F–G; Calitz 1990 1
SACR 119 (A) 126d.
156 CRIMINAL LAW

The mental abilities which a person must have in order to have criminal
capacity, are:
(1) the ability to appreciate the wrongfulness of his conduct; and
(2) the ability to conduct himself in accordance with such an appreciation
of the wrongfulness of his conduct.

If a person lacks one of these abilities, he lacks criminal capacity and cannot be
held criminally liable for unlawful conduct in which he engaged while lacking
one of these abilities.
2 Capacity and unlawfulness The need to consider X’s capacity arises only
once it is clear that X has committed an unlawful act. It follows that a person
who lacks capacity is nevertheless capable of committing an unlawful act. This
principle is of practical importance in the following respect: as pointed out
above,36 a person may rely on private defence only if he defends himself
against an unlawful attack. Since even a person who lacks capacity, such as
somebody of immature age, may act unlawfully, X may rely on private defence
even if he defends himself against an attack by such a young child.37
3 Capacity and culpability Before any person can be said to have acted
culpably, it must be clear that at the time of the act such a person was endowed
with criminal capacity. Such capacity is an indispensable component of the
concept of culpability. To say that a person acted culpably means that there are
grounds upon which, in the eyes of the law, he may fairly be blamed for his
unlawful conduct. One of the reasons he can be blamed is the fact that at the
time of the conduct he had criminal capacity. If an investigation reveals that X
lacked capacity at the time of his conduct, he escapes conviction because of
lack of capacity; it then becomes unnecessary to investigate whether he acted
with intention or negligence.38
4 Capacity and intention Even though capacity is one of the grounds for the
blame inherent in culpability, it does not follow that capacity and culpability
are one and the same thing. They are two different concepts. In determining
whether X had intention, one must ascertain what knowledge he had. In deter-
mining whether he had capacity, the question is not what knowledge he had,
but what his mental abilities were, in other words whether he had the mental
abilities to appreciate the wrongfulness of his act and to act in accordance with
such an appreciation.
More particularly, it is important not to confuse the question relating to X’s
awareness of unlawfulness (which forms part of intention or dolus) with the
question relating to X’s capacity. Awareness of unlawfulness deals with X’s
knowledge or awareness of the unlawfulness of his act. Capacity, on the other
hand, deals with X’s ability to appreciate the unlawfulness of his conduct and to
conduct himself in accordance with such an appreciation. It is therefore wrong to
allege “that X had capacity because he knew that what he was doing, was wrong”.
________________________

36 Supra IV B 3 (a).
37 K 1956 3 SA 353 (A); supra IV B 3 (a).
38 Mahlinza 1967 1 SA 408 (A) 415A; Campher 1987 1 SA 940 (A) 955C–F.
 CULPABILITY 157

5 X must have capacity at the time of his conduct A person may at a cer-
tain time have capacity and at another time lack capacity. A mentally disturbed
person may for a reasonably short period be mentally perfectly normal and
therefore have capacity (this is the so-called lucidum intervallum) and there-
after again lapse into a state of mental abnormality. For the purposes of deter-
mining liability a court needs to know only whether X had capacity at the
moment he committed the unlawful act.
6 Two psychological requirements for capacity X’s capacity is determined
with the aid of two psychological factors, namely first, his ability to distinguish
between right and wrong, and secondly, his ability to conduct himself in accord-
ance with his insight into right and wrong. These two factors form the basis of a
person’s capacity and his responsibility for his conduct.39 These two factors
refer to two different categories of mental functions.

Criminal capacity

Ability to appreciate Ability to act in accordance

wrongfulness . . . with such an appreciation

cognitive conative
(ie, ability to (ie, power of
differentiate) resistance)

The first function, that is, the ability to distinguish between right and wrong,
lawful and unlawful, forms part of a person’s cognitive mental function. The
cognitive function is related to a person’s reason or intellect, in other words his
ability to perceive, to reason and to remember.40 Here the emphasis is on a per-
son’s insight and understanding.
The cognitive function may be described in different words. Sometimes (as
in section 78(1) of the Criminal Procedure Act) it is described as the ability to
appreciate the wrongfulness of a person’s act. Sometimes it is described as the
ability to appreciate the unlawfulness of the act, and sometimes as the ability to
differentiate between right and wrong. Normally it does not matter what ex-
pression one uses; they are simply employed as synonyms.
A person’s ability to conduct himself in accordance with his insight into right
and wrong is known as his conative mental function. The conative function
consists in a person’s ability to control his behaviour in accordance with his
________________________

39 Rumpff Report 8 2, 9 30; Lesch 1983 1 SA 814 (O) 823G–H; Engelbrecht 2005 2 SACR
41 (W) par 457.
40 Rumpff Report 9 9, 9 13; Laubscher supra 166H–I; Wiid 1990 1 SACR 561 (A) 563h.
158 CRIMINAL LAW

insights – which means that, unlike an animal, he is able to make a decision, set
himself a goal, to pursue it, and to resist impulses or desires to act contrary to
what his insights into right and wrong reveal to him.41 Here, the key word or
idea is “self-control”. According to the Rumpff Report the conative function
implies “a disposition of the perpetrator through which his insight into the
unlawful nature of a particular act can restrain him from, and thus set up a
counter-motive to, its execution”.42
In short, the cognitive and conative functions amount to insight (ability to
differentiate) and self-control (power of resistance) respectively.43
In order to have capacity X must have both of the two above-mentioned
psychological functions or abilities. If either is absent, he lacks capacity.
7 Absence of capacity distinguished from involuntary behaviour The (a)
inability to act in accordance with an appreciation of the wrongfulness of the
act (in other words absence of the conative mental function) must not be con-
fused with (b) the inability of a person to subject his bodily movements to his
will or intellect. Inability (b) deals with the question of whether X has commit-
ted an act in the criminal-law sense of the word. If inability (b) is absent, it
means that X has acted involuntarily and that there was no act or conduct as
these terms are understood in criminal law. An example in this respect is where
X walks in his sleep. The crucial question here is whether X is capable of
controlling his physical (or motor) movements by his will. On the other hand,
inability (a) has nothing to do with the question of whether X has acted or not,
but forms part of the test to determine capacity. Here X does have the power to
subject his bodily movements to his will, but what he is not capable of doing, is
to properly resist the temptation to commit a crime. In short, in (a) the mental
power of resistance which a normal person has is absent, whereas in (b) the
power or ability physically to control one’s bodily movements is lacking.44

(ii) NON-PATHOLOGICAL CRIMINAL INCAPACITY45

1 General The defence of mental illness is limited to situations where X
suffered from a pathological disturbance of his mental abilities. “Pathological”
means “emanating from a disease”. However, what is the situation if X alleges
that he did not suffer from a pathological disturbance of his mental abilities, but
that he nevertheless was unable to direct his conduct in accordance with his
insight into right and wrong, owing to factors such as emotional stress or anger
– that is, factors which cannot be described as a “pathological illness” but
rather a brief emotional disturbance occasioned by some outside factor?
________________________

41 Rumpff Report 9 9, 9 20–29, 9 33; Laubscher supra 166I–J; Wiid supra 564h–i.
42 Rumpff Report 9 33. See also Lesch supra 823H–824B and Campher supra 956 and 958I.
43 Rumpff Report 9 32, 9 84, 9 91; Laubscher supra 166H–J, 167C–D; Wiid supra 563i–j.
44 In Eadie 2002 1 SACR 663 (SCA) pars 54 and 60 Navsa JA disagreed with the view
expressed in the text. For criticism of the judgment in Eadie, see infra V B (ii) 4; Snyman
2003 Acta Juridica 14–20.
45 For a discussion of this defence, before the Supreme Court of Appeal threw cold water on
it in Eadie 2002 1 SACR 663 (SCA), see Burchell and Hunt ch 22; Van Oosten 1993
SACJ 126 ff; Snyman 1989 TRW 1 ff. For a discussion of this subject after the decision in
Eadie, see Snyman 2003 Acta Juridica 1; Burchell 2003 Acta Juridica 23; Burchell and
Milton ch 28; Hoctor Huldigingsbundel Snyman 110 133 ff.
 CULPABILITY 159

X and Y are, for example, involved in a raging quarrel, in the course of

which X becomes so angry that he shoots and kills Y. X was not suffering from
any pathological mental disturbance, but he alleges that at the critical moment
he totally lost all self-control for a relatively short period of time. These are
situations which occur within the context of crimes such as murder and assault
where X admits that he unlawfully shot or assaulted Y, but alleges that, owing
to factors such as anger, stress, fear, tension, “emotional storm” or “total per-
sonality disintegration”, he lacked criminal capacity. A typical allegation of X
in this type of situation is that he cannot remember anything of what happened
at the critical moment; that “everything suddenly just became black around me,
and when I came to my senses again, I found that I had shot Y”.
Before approximately 1987 the law did not recognise the type of defence
raised by X in the situation set out above, as a complete defence (ie, a defence
that leads to total acquittal). The reason for this is simple: the courts quite
rightly realised that X’s defence in fact amounted to nothing else than the
defence of provocation, and as far as this defence is concerned, South African
law, like Anglo-American law, refused to regard anger caused by provocation
as an absolute defence in the sense that it could lead to total acquittal.
This rule was based on the following very healthy legal principle: the law
must treat all people on an equal footing. The law cannot afford to differentiate
between people who do not control their tempers and people who do. If an
adult, mentally normal person who fails to control his temper and who then
commits an unlawful act were to be afforded a complete defence merely be-
cause he lost his temper, it would mean that the law treats such people on a
different footing from those other members of society who do indeed take the
trouble to keep their tempers under control. It would mean that undisciplined
people are judged by a standard which differs from that applicable to discip-
lined people. Such a distinction is unjustified.46 In short, the law expects adult,
mentally healthy people to control their tempers. This principle is linked to the
inevitably objective nature of law: all people must be treated alike.
Unfortunately this very necessary, objective aspect of criminal justice suffered
a setback when the Appeal Court decided in Campher 47 (1987) and Wiid 48
(1990) that extreme provocation could totally exclude criminal capacity and
lead to a total acquittal. However, the court did not recognise this radical change
to be a change in the defence of provocation. Instead it created a new, bom-
bastic, erudite-sounding expression, namely “non-pathological criminal in-
capacity”. By this it meant a form of incapacity that is not the result of a
________________________

46 In Kensley 1995 1 SACR 646 (A) 658g–I Van den Heever JA expressed this principle
very well: “Criminal law for purposes of conviction . . . constitutes a set of norms applic-
able to sane adult members of society in general, not different norms depending on the
personality of the offender. Then virtue would be punished and indiscipline rewarded: the
short-tempered man absolved for the lack of self-control required of his more restrained
brother. As a matter of self-preservation society expects its members, even when under
the influence of alcohol, to keep their emotions sufficiently in check to avoid harming
others and the requirement is a realistic one since experience teaches that people normally
do.”
47 1987 1 SA 940 (A).
48 1990 1 SACR 561 (A).
160 CRIMINAL LAW

pathological (ie, “emanating from a disease”) mental disturbance, as in the case

of the defence created in section 78(1) of the Criminal Procedure Act. The
creation of this defence had far-reaching implications. People who were accused
of murder and who admitted having killed their victims unlawfully could be
found not guilty on the ground of absence of criminal capacity due to factors
such as “emotional stress” or “emotional breakdown”.49
The following development in the history of this defence took place in 2002,
when the Supreme Court of Appeal in Eadie50 delivered a judgment that can be
interpreted as the death-knell for the defence of non-pathological criminal
incapacity. The court held that if someone raises this defence on the grounds of
extreme provocation, the defence should be treated as a reliance on the defence
of sane automatism, that is, the defence that X did not act voluntarily. Before
discussing Eadie in more detail, it is fitting first to consider briefly what the
defence of non-pathological criminal incapacity entailed in the period before
this judgment (1987–2002).
2 The decision in Eadie In Eadie51 the Supreme Court of Appeal delivered a
judgment that seemed to pull the plug on this defence. In this case X assaulted
and killed Y with a hockey stick, following an incidence of road rage. The
court rejected his defence of non-pathological criminal incapacity and con-
firmed his conviction of murder.
After a detailed analysis of the case law dealing with this defence, Navsa JA,
who delivered the unanimous judgment of the court, held that there is no differ-
ence between a reliance on non-pathological criminal incapacity emanating from
emotional stress and provocation, on the one hand, and the defence of sane
automatism, on the other hand.52 More particularly, the court held that there is
no difference between the second (ie, conative) leg of the test for criminal
capacity (ie, X’s ability to act in accordance with his insights) and the require-
ment applicable to the act (the “first element” of criminal liability) that X’s
bodily movements must be voluntary. If X alleges that, as a result of provoca-
tion, his psyche had disintegrated to such an extent that he could no longer con-
trol himself, it amounts to an allegation that he could no longer control his
muscular movements and that he therefore acted involuntarily. Such a plea of
involuntary conduct is nothing else than the defence of sane automatism.53 It is
a well-known fact that the defence of sane automatism is not easily upheld.54

________________________

49 For a discussion of the reported case law in which this defence was raised and sometimes
upheld, see Eadie 2002 1 SACR 663 (SCA) 673–686.
50 2002 1 SACR 663 (SCA).
51 2002 1 SACR 663 (SCA). For a detailed discussion of this decision, see Snyman 2003
Acta Juridica 1 14–22, who is very critical of the decision, Burchell 2003 Acta Juridica
23, who, inter alia, discusses the evidentiary aspects emphasised in the judgment; Louw
2003 SACR 200; Hoctor 2009 Annual Survey of SA Law 300-306, who is very critical of
the decision, describing it as “a recrudescence of objectivity in relation to mens rea, which
sets the law relating to criiminal liability back decades” (304).
52 Par 57.
53 Par 57–58.
54 For a discussion of the defence of involuntary conduct, ie, sane automatism, see supra II
A 10–13.
 CULPABILITY 161

The upholding of X’s conviction of murder by the Supreme Court of Appeal

cannot be faulted. On the facts the finding of both the trial court and the
Supreme Court of Appeal, namely that X’s defence should be rejected, was
completely correct. Had the court simply found that the defence no longer exists
because it is irreconcilable with the basic policy consideration mentioned above
(which demands that all people – those who lose their tempers as well as those
who take the trouble to control their tempers – should be judged by the same
standard),55 one could have agreed entirely with such a decision. However,
instead of “burying”, as it were, the defence on the solid ground of its incom-
patibility with legal policy, the court attempted to “bury” it on the grounds of
criminal law theory. It is exactly here that the court, with respect, took the
wrong turn.
3 Criticism of the court’s view of the general principles of criminal liability
Although, as stated above, one can agree with the ultimate conclusion reached
by the court in Eadie, the legal reasoning on which the court attempted to base
its conclusion is flawed. The judgment is in fact one of the most enigmatic
judgments of the Supreme Court of Appeal in the field of the general principles
of criminal law during the past half century.
Firstly, the whole tenor of the judgment is not that the defence should be
abolished, but that evidence of the absence of capacity at the crucial moment
should not be believed, or at least not readily believed. Yet what is the situation
if there is indeed credible evidence, not rebutted by the state, that X lacked
capacity at the time of the commission of the deed? Must the court then acquit
X on the ground of absence of capacity? The court fails to answer this question,
leaving it to the reader to grapple in the dark as to what the answer is. In a
crucial passage Navsa JA states: “It appears to me to be justified to test the
accused’s evidence about his state of mind, not only against his prior and sub-
sequent conduct but also against the court’s experience of human behaviour and
social interaction. Critics may describe this as principle yielding to policy.”56 If
by this the judge meant that the veracity or credibility of an accused’s (or other
witnesses’) evidence of lack of capacity should be judged by using the standard
of “the court’s experience of human behaviour and social interaction”, the state-
ment does not make sense. One cannot decide whether something really existed
(in casu, X’s criminal capacity) by having recourse to whether such a thing
(X’s criminal capacity) ought to have existed. Such a way of arguing would
amount to confusing that which is with that which ought to be, or confusing
reality with morality.
Secondly, one must disagree with the court’s equation of the conative leg of
the test for criminal capacity with the requirement of voluntariness in the elem-
ent of the act. As already pointed out above,57 one is in fact here dealing with
________________________

55 Supra par 1.
56 Par 64.
57 Supra V B (i) 6. For a further explanation of this distinction, see Snyman 2003 Acta
Juridica 1 16–19. In his discussion of the finding of the court a quo in Eadie, Hoctor
2001 SACJ 195 202 states: “It is clear that lack of conative capacity (‘weerstandskrag/
wilsbeheervermoë’) does not result in involuntary (‘onwillekeurige’) behaviour.” At 205
the same author states: “As regards S v Eadie (1), it is submitted that though the case was
[continued]
162 CRIMINAL LAW

two completely different things. If the conative leg of the test of criminal in-
capacity is not complied with, it means that X is indeed able to control his
bodily movements by subjecting his muscular contractions to the control of his
will or intellect, but that he is unable to resist the temptation to act in a way that
differs from what his insights have taught him. The conative leg implies, in the
words of the Rumpff report,58 “a disposition of the perpetrator through which
his insight into the unlawful nature of a particular act can restrain him from,
and thus set up a counter-motive to, its execution”.
Young children between the ages of seven and fourteen can control their
muscular movements and do, therefore, have the ability to perform voluntary
acts, but the courts often find that they nevertheless lack the mental ability to
resist temptation to act unlawfully, as when they participate in criminal acts
together with older perpetrators, such as their fathers. The courts regularly
acknowledge this principle.59 This completely correct principle applied by the
courts cannot be reconciled with the reasoning in Eadie, as this principle
presupposes voluntary conduct by someone who is unable to act in accordance
with his insights.
In addition, the wording of the two important sections from two statutes,
namely section 78(1) of the Criminal Procedure Act, which formulates the test
for criminal capacity in the defence of mental illness,60 and section 1(1) of the
Criminal Law Amendment Act 1 of 1988, which defines the crime of “statutory
intoxication”,61 makes sense only if one assumes that the test for a voluntary act
is something different from the test to determine whether there was compliance
with the second (ie, conative) leg of the test for criminal capacity. The “act”
mentioned in these sections (which are so important for the present purposes)
must of necessity refer to a “voluntary act”, otherwise these provisions do not
make sense.62
Thirdly, it makes no sense to treat a plea of non-compliance with one element
of liability as synonymous with a plea of non-compliance with another element
of liability. It would surely be nonsensical to treat a defence alleging the absence
of culpability or intention as synonymous with a defence alleging the absence
of unlawfulness. But, according to the judgment in Eadie, a defence alleging
the absence of criminal capacity due to extreme provocation should be treated as
synonymous with a defence alleging the absence of a voluntary act – an argu-
ment which contradicts the elementary principles of the construction of crim-
inal liability.63
________________________

correctly decided, the reflection of the apparently increasing tendency to conflate sane
automatism and non-pathological incapacity is unwelcome. Not only is such a develop-
ment retrogressive in that it is clearly unscientific (the concepts incontestably relate to
different elements of criminal liability), it is also unwarrantable . . .”
58 Rumpf report 9 33.
59 Dikant 1948 1 SA 693 (O) 700–701; Dyk 1969 1 SA 601 (C) 603E–F; M 1978 3 SA 557
(Tk); Khubeka 1980 4 SA 221 (O); Pietersen 1983 4 SA 904 (E) 910H; Ngobese 2002 1
SACR 562 (W) 565.
60 For a quotation and a discussion of the section, see infra V B (iii) 2–7.
61 For a quotation and discussion of this section, see infra V E 13–15.
62 For a detailed exposition of this argument, see Snyman 1993 Acta Juridica 1 16–17.
63 For similar criticism of the judgment, see Hoctor Huldigingsbundel Snyman 110.
 CULPABILITY 163

Fourthly, it seems as though the court tried to sit on two chairs at the same
time. There are statements implying that the conative leg of the test for criminal
capacity is unnecessary as it amounts to the same as the test to determine the
presence of a voluntary act.64 Other statements again amount to exactly the con-
trary, namely that the second leg of the test to determine criminal incapacity is
indeed to be taken into consideration.65 One cannot help wondering sometimes
whether the court in fact knows what “criminal capacity” really means. For
example, in one passage the court alleges that “the phenomenon of sane people
temporarily losing cognitive control . . . is rare”.66 There is no such thing as
“cognitive control”. “Control” by definition refers to the conative leg of the test
for criminal capacity, and not to the cognitive leg.67 Elsewhere the judge agrees
with a person who declares that “. . . the only circumstance in which one could
‘lose control’ is where one’s cognitive functions are absent”.68 This statement is
patently wrong. It is one’s conative functions that fall apart when you lose con-
trol, not your cognitive functions.69
Fifthly, there is the strange statement by Navsa JA that “the insistence that
one should see an involuntary act unconnected to the mental element, in order
to maintain a more scientific approach to the law, is . . . an over-refinement”.70
How can the “mental element”, that is, the requirement of culpability, form part
of the requirement of the act? One has to wonder whether the learned judge
understands the basic building blocks of criminal liability – the difference
between wrongdoing and culpability,71 or to use the terminology favoured by
the courts, between actus reus and mens rea.
4 Defence of non-pathological criminal incapacity by implication abol-
ished If, for the sake of argument, one ignores the dogmatic-theoretical ques-
tions discussed immediately above, the reader of this judgment is still faced with
another dilemma. It is this: does the defence of non-pathological criminal in-
capacity still exist after this decision? The Supreme Court of Appeal has chosen
not to answer this question directly, but to leave it to the readers of the judgment
to wrangle with what the answer to this important question is.
It is submitted that the Supreme Court of Appeal in this judgment in fact
abolished this defence. The reader may be inclined to think that the defence has
been abolished only in situations where criminal incapacity is due to provo-
cation, and that it does not apply to situations in which X alleges that he lacked
criminal capacity because of factors not directly related with provocation, such
________________________

64 Eg par 57: “. . . [W]hen it has been shown that an accused has the ability to appreciate the
difference between right and wrong, in order to escape liability, he would have to success-
fully raise involuntariness as a defence.” Also see the statements in par 58.
65 Par 57: “I am, however, not persuaded that the second leg of the test expounded in
Laubscher’s case should fall away.”
66 Par 65.
67 See the discussion supra V B (i) 6 and the references – including case law – referred to in
the footnotes of this discussion.
68 Par 43.
69 Supra V B (i) 6.
70 Par 58 in fine.
71 Supra I E 2; IV A 5, 11; V A 2.
164 CRIMINAL LAW

as stress, shock, concussion, panic or fear. The problem, however, is that these
conditions are so closely related to emotional stress caused by provocation, that
they could hardly be separated from the latter.
However, between the lines of this obscure judgment, one does notice with
reasonable certainty a certain trend in the approach of the court, namely to steer
our law away from the extreme subjective approach to culpability, which the
same court adopted in previous decisions such as De Blom,72 Chretien,73
Campher 74 and Wiid,75 and to recognise the need for some or other objective
factor – or “corrective” – in the concept of culpability. Such development of the
concept of culpability in our law must be welcomed as it links up with the nor-
mative character of the concept of culpability.

(iii) MENTAL ILLNESS

1 Introduction Since 1977 the defence of mental illness (insanity) has been
governed by statute, namely the provisions of sections 77 to 79 of the Criminal
Procedure Act 51 of 1977. Before 1977 this defence, which was then known as
the “defence of insanity”, was largely based upon the so-called M’Naghten rules,
derived from English law.76
2 The test to determine criminal capacity If the defence of mental illness is
raised, the test to determine X’s criminal responsibility set out in section 78(1)
of the Criminal Procedure Act must be applied. (The Criminal Procedure Act
employs the expression “criminal responsibility” in the place of “criminal
capacity”.)

Section 78(1) reads as follows:

“A person who commits an act or makes an omission which constitutes an offence
and who at the time of such commission or omission suffers from a mental illness
or mental defect which makes him or her incapable–
(a) of appreciating the wrongfulness of his or her act or omission; or
(b) of acting in accordance with an appreciation of the wrongfulness of his or
her act or omission,
shall not be criminally responsible for such act.”

________________________

72 1977 3 SA 513 (A).

73 1981 1 SA 1097 (A).
74 1987 1 SA 940 (A).
75 1990 1 SACR 561 (A).
76 M’Naghten (1843) 10 Cland Finn 200.
 CULPABILITY 165

3 Analysis of section 78(1) The test embodied in the subsection may be

illustrated as follows:

A person lacks criminal

responsibility if:

A
(he suffers from) B
mental illness or + he is incapable of –
mental defect

(i) (ii)
appreciating acting in accordance
wrongfulness OR with appreciation of
of his act wrongfulness

cognitive conative
function function

pathological or
biological leg of test psychological leg of test

The test enunciated in this section has two legs, which are indicated in the
diagram above in two squares marked “A” and “B”. The first square (A) com-
prises the pathological leg (or biological leg, as it is sometimes called) of the
test. The second square (marked B) comprises the psychological leg of the test.
The test set out in section 78(1) to determine whether X lacks criminal capacity
or responsibility embodies a so-called mixed test, in the sense that both X’s
pathological condition (see the first square, A) and psychological factors (see
the second square, B) are taken into account.
4 Mental illness or mental defect The first part of the test for criminal
responsibility, namely that X must have been suffering from a mental illness or
mental defect, will be considered first.
It is clear from the further subsections of section 78, and from section 79, that
whether X was suffering from a mental illness or mental defect must be deter-
mined with the aid of psychiatric evidence. The terms “mental illness” and
“mental defect” do not relate to only certain known forms of mental abnormal-
ity, to the exclusion of others. A court would be undertaking an impossible and
even dangerous task if it were to seek a general symptom which would enable it
to identify a mental abnormality as a “mental illness” or “mental defect” within
the meaning of section 78(1).77
________________________

77 Mahlinza 1967 1 SA 408 (A) 417; Kok 2001 2 SACR 106 (SCA) 110e–f. For a discus-
sion of the requirement of “mental illness or metal defect” in s 78(1), see Le Roux and
Stevens 2012 SACJ 44.
166 CRIMINAL LAW

The Criminal Procedure Act does not stipulate what the difference is between
a mental illness and a mental defect. In practice the answer to this question will
usually appear from the expert evidence of a psychiatrist. A possible explan-
ation of the difference between these two expressions is the following: A
“mental defect” is normally characterised by an abnormally low intellect which
is usually evident already at an early stage and is of a permanent nature. A
“mental illness”, on the other hand, usually manifests itself later in life and is
not necessarily of a permanent nature.
It is not necessary to prove that a mental illness or defect originated in X’s
mind: the defence may be successful even if the origin was organic, as in the
case of arteriosclerosis.78 Nor is the duration of the mental illness relevant: it
may be of either a permanent or a temporary nature.79 In the latter case it must
of course have been present at the time of the act.80 Whether the mental illness
is curable or incurable is similarly irrelevant.81 If X was mentally ill before and
after the act but he committed it during a lucidum intervallum (sane interval),
he does not lack criminal responsibility for the act.
The term “mental illness” or “mental defect” refers to a pathological disturb-
ance of the mental faculties, not to a temporary clouding of the mental faculties
which cannot be ascribed to a mental disease, but merely to external stimuli such
as alcohol or drugs or even provocation.82 However, continual consumption of
alcohol may result in a condition known as delirium tremens, which is
acknowledged to be a form of mental illness; if X committed the act while he
was in that condition, he may successfully rely on the section.83
The fact that a person has been, or may be, declared mentally ill in terms of
legislation dealing with the civil admission of people in institutions for the
mentally ill, does not mean that he is therefore also mentally ill for the purposes
of section 78(1) of the Criminal Procedure Act. Such a declaration in terms of
the former legislation is something completely different from criminal non-
responsibility and “mental illness” or “mental defect” as intended in section
78(1).84 On the other hand such a declaration is a factor which, together with
others, a court may take into consideration when deciding whether a person
lacks criminal responsibility.85
A court cannot reach a finding of criminal non-responsibility without hearing
expert evidence by psychiatrists. If it is alleged in the course of criminal pro-
ceedings that X by reason of mental illness or mental defect was not criminally
responsible at the time of the commission of the alleged crime, the court must
________________________

78 Holliday 1924 AD 250 257, 260; Mahlinza supra 417, 418. In this decision the Appellate
Division approved the English decision of Kemp [1956] 3 All ER 249, in which the cause
of X’s mental illness was arteriosclerosis. The English court nevertheless held that X was
suffering from a disease of the mind and was not criminally liable. Cf also Campher 1987
1 SA 940 (A) 965F–G; Edward 1992 2 SACR 429 (ZH) 433d–e.
79 Mahlinza supra 417; Campher supra 965F; Laubscher 1988 1 SA 163 (A) 167E.
80 Gouws 2004 2 SACR 512 (W).
81 Kemp supra 253.
82 Stellmacher 1983 2 SA 181 (SWA) 187–188.
83 Ivory 1916 WLD 17; Holliday supra 257.
84 Mahlinza supra 416; Mnyanda 1976 2 SA 751 (A) 764.
85 Von Zell (1) 1953 3 SA 303 (A) 309.
 CULPABILITY 167

direct that a psychiatric inquiry into the matter be held in the manner prescribed
in the act.86 This is prescribed in section 79 of the Criminal Procedure Act.
Since the provisions of this section are of procedural importance only, they will
not be set out and discussed here. It suffices to mention that the section con-
tains, for example, provisions relating to the number of psychiatrists who must
participate in the investigation, the committal of X to a mental hospital or other
place for the purposes of the investigation, the report to be drawn up by the
psychiatrists, and the adjudication of the report by the court.
5 Psychological requirements for criminal non-responsibility The fact
that a person suffers from a mental illness or defect is not in itself sufficient to
warrant a finding that he is not criminally responsible. The mental illness or
defect must have a certain effect on his abilities: he must lack the capacity to
(a) appreciate the wrongfulness of his act or (b) act in accordance with an
appreciation of the wrongfulness of his act. These two psychological criteria
apply in the alternative. Even if X is capable of appreciating the wrongfulness
of his act, he will escape liability if it appears that he lacks the capacity to act in
accordance with that appreciation.
In the discussion above87 of the concept of criminal capacity in general, the
two psychological requirements for capacity identified in the Rumpff Report
have been discussed. As pointed out in that discussion, the ability to appreciate
the wrongfulness of the act forms part of a person’s cognitive mental functions,
while the ability to act in accordance with such an appreciation forms part of
his conative mental functions.
6 Capacity to appreciate wrongfulness of conduct The first part of the
psychological criterion for criminal responsibility is the capacity to appreciate
the wrongfulness of the conduct. However, no mention is made in section 78(1)
of the situation where X does not understand the nature of his act. This seems
to be a deficiency in the section. It is conceivable that a person’s cognitive func-
tions may be so impeded that he does not understand the nature of his act, or, in
colloquial terms, “he does not know what he is doing”. For example, he thinks
in his befuddlement “that he is chopping a log of wood whereas he is striking a
human being”. However, the argument that these types of cases are also covered
by the first part of the psychological test can be supported: if X does not even
know what he is doing, how can he appreciate its unlawfulness?88
7 Capacity to act in accordance with appreciation of wrongfulness X
must at the time of the act (because of mental illness or mental defect) be in-
capable of acting in accordance with an appreciation of the wrongfulness of his
act. Such lack of self-control may be the result of a gradual process of disinte-
gration of the personality.89
8 Mental illness and automatism The absence of liability because of mental
illness must not be confused with the evasion of liability where X acted in a state
of automatism. Although some cases of mental illness may closely resemble
________________________

86 S 78(2) of the Criminal Procedure Act 51 of 1977.

87 Supra V B (i) 6.
88 Strauss 1974 THRHR 219 234; Van Oosten 1990 SACJ 1 6.
89 This is well illustrated by the facts and the finding in Kavin 1978 2 SA 731 (W).
168 CRIMINAL LAW

cases of automatism, they should nevertheless be clearly distinguished. If X

relies on the defence of automatism, the onus of disproving it rests on the
state.90 The basis of the non-liability is that there is no act in the criminal-law
sense of the word, because the conduct is not voluntary. If this defence is
successful, X is found not guilty and discharged. The court does not make a
special verdict (as is done if the defence of mental illness succeeds). If, on the
other hand, X’s defence is one of mental illness, the onus of proving mental
illness rests on the party raising the defence; this is usually X (the accused)
himself.91 The basis of X’s non-liability in this case is absence of criminal
responsibility (capacity), and if the defence is successful, X is not released, but
usually ordered to be detained in a psychiatric hospital or prison.92
Automatism has already been discussed above in connection with the re-
quirement of an act.93 The essence of the defence of automatism is involuntary
conduct which is not a manifestation of a mental disease. Examples of such
conduct are sleepwalking, muscular movements during dreams, and epileptic
fits. It is, however, possible that such behaviour (eg an epileptic fit) may result
from a pathological mental disease.94 Whether this is the case is a question of
fact to be determined by the court with the aid of expert evidence. A disturb-
ance of the consciousness may result from a situation not brought about by
voluntary conduct, for example shock, concussion as a result of a blow to the
head, or the unwitting taking of a sedative. In such cases X may rely on autom-
atism but not on mental illness.95
The expression “sane automatism” which is sometimes used in legal literature,
relates to cases in which X’s conduct is only momentarily involuntary and he
accordingly does not “act” in the legal sense of the word. The expression
“insane automatism”, on the other hand, refers to cases in which the abnormal
or seemingly involuntary conduct is the result of mental illness. The use of the
expressions “sane” and “insane” automatism may lead to confusion and ought
to be avoided, since the defence known as “insane automatism” is in reality
nothing else but the defence of mental illness (“insanity”).96 This confusing
terminology dates from the old days when the concept of criminal capacity was
still unknown in criminal law.
In the interest of clarity the expressions “sane automatism” and “insane
automatism” should be avoided. The term “automatism” ought to be restricted
to involuntary behaviour not attributable to mental illness. It is very significant
that the Supreme Court of Appeal has recently in more than one judgment97 in
________________________

90 Trickett 1973 3 SA 526 (T), and see supra II A 12, 13.

91 S 78(1A) of the Criminal Procedure Act 51 of 1977; infra par 9.
92 S 78(6) of the Criminal Procedure Act 51 of 1977; infra par 10.
93 Supra II A 10–13.
94 On the liability of an epileptic, see Kumalo 1956 3 SA 238 (N); Mokwanazi 1959 3 SA
782 (W); Leeuw 1980 3 SA 815 (A); Strauss 136 ff.
95 Trickett supra 532; Stellmacher 1983 2 SA 181 (SWA).
96 In Kok 2001 2 SACR 106 (SCA) 109–110 the Supreme Court of Appeal emphasised that
s 78(6) of the Criminal Procedure Act contained no reference to “sane automatism”, and
that the latter expression was not a term used in psychology, but only a tag employed to
refer to automatism which is not attributable to a mental illness.
97 Cunningham 1996 1 SACR 631 (A) 635–636; Henry 1999 1 SACR 13 (SCA) 19–20.
 CULPABILITY 169

which the present topic was at issue, avoided the use of the terms “sane automa-
tism” and “insane automatism”, preferring rather to speak of “automatism not
attributable to mental pathology”. In Henry98 the court also used the expression
“psychogenic automatism” instead of “sane automatism”. What in the past has
been described as “insane automatism” can better be described as “pathological
loss of consciousness”. The important difference which must be drawn is that
between loss of consciousness due to a mental illness and such loss due to in-
voluntary behaviour.
9 Burden of proof In 1998 section 78 of the Criminal Procedure Act was
amended by the insertion of section 78(1A), which reads as follows: “Every
person is presumed not to suffer from a mental illness or mental defect so as not
to be criminally responsible in terms of section 78(1), until the contrary is
proved on a balance of probabilities.” A new section 78(1B) has also been
inserted. It reads as follows: “Whenever the criminal responsibility of an
accused with reference to the commission of an act or an omission which con-
stitutes an offence is in issue, the burden of proof with reference to the criminal
responsibility of the accused shall be on the party who raises the issue.” The
expression “criminal responsibility” used by the legislature is synonymous with
“criminal capacity”.
The effect of section 78(1A) is that there is a presumption that all people are
mentally normal. The effect of section 78(1B) is that if X raises the defence of
mental illness, the burden of proving that he suffered from a mental illness at
the time of the commission of the act rests on him (X). He discharges it by
proving on a balance of probabilities that he was mentally ill at the time of the
act. The state may also allege that X was mentally ill at the time of the commis-
sion of the act. In such a case the burden of proving the mental illness on a
balance of probabilities rests on the state. In practice it is usually, if not invari-
ably, X who raises the defence. It is only in exceptional circumstances that the
state will allege that X was mentally ill.
It is conceivable that the constitutionality of the rule that the onus of proof
rests on X to prove his mental illness if he is the party raising the defence, may
in future be challenged on the basis that it amounts to an unjustifiable infringement
of the presumption of innocence. In the Canadian case of Chaulk 99 the majority
of the court held that the presumption of sanity, as well as the onus placed upon
an accused who raises this defence, is a justifiable limitation of X’s right to be
presumed innocent, and that this rule is therefore not unconstitutional.
It has been argued that it would be better to burden the state with the onus of
proving that X was not mentally ill at the time of the conduct in question, but to
place a duty on an accused who raises this defence to place evidence before the
court which would be sufficient to create at least a reasonable doubt as to
whether he was mentally sound.100 Such a rule would accord with the general
rule relating to the onus in criminal matters as well as the presumption of
innocence. Such a rule would also accord with the rule relating to the onus of

________________________

98 1999 1 SACR 13 (SCA) 20e–f.

99 (1991) ICRR (2d) 1 (SCC).
100 Burchell and Milton 394–395; Milton 1998 SACJ 228 231–232.
170 CRIMINAL LAW

proof in the defence of automatism. It is submitted that this argument has merit,
especially if one bears in mind that a mentally ill person is, of all persons, the
least capable of proving his incapacity.
10 Verdict Section 78(6), as amended, provides that if the defence of mental
illness is successful, the court must find X not guilty. The court then has a dis-
cretion to issue any one of the following directions:
(1) that X be detained in a psychiatric hospital or prison pending the decision
of a judge in chambers;
(2) that X be admitted to and detained in an institution named by the court and
there be treated as if he were an involuntary mental care health user as pro-
vided for in the Mental Health Care Act 17 of 2002;
(3) that X be released subject to such conditions as the court considers appro-
priate; or
(4) that X be released unconditionally.
Some of these orders may only be made in certain circumstances set out in the
section. Because of the complexity of these provisions, and because they are
more a matter of procedural law, they will not be discussed here.
An example of a case in which the court may decide to release X uncon-
ditionally is where the evidence shows that, although X might have suffered
from mental illness when he committed the wrongful act, at the time of his trial
he was mentally completely normal again.
11 Release of accused The release of persons who have been detained in a
psychiatric institution or prison after a court has found that they were mentally
ill at the time of the commission of the act, is governed by the provisions of
sections 37 and 47 of the Mental Health Care Act 17 of 2002. These sections
set out rather long and complicated administrative procedures to determine
whether a patient may be released.
A detailed discussion of these provisions falls outside the scope of this book.
It suffices to state that people like the following may, in terms of section 47,
apply to a judge in chambers for an order for the discharge of the patient (X): X
himself; X’s spouse or next of kin; an official curator ad litem; or the head of the
health establishment to which X is admitted. After consideration of the appli-
cation the judge may issue one of several different orders, such as that X be
released unconditionally, that he be released on certain conditions, that he should
continue to be detained as a patient or that he no longer be detained as a patient.
The result is that X may be deprived of his freedom for a long period even
though he committed a relatively minor crime. It is for precisely this reason that
the defence of mental illness is generally raised only if X is charged with a
crime for which a severe sentence may be imposed, such as murder.
12 Diminished responsibility Section 78(7) provides that if the court finds
that X at the time of the commission of the act was criminally responsible for
the act, but that his capacity to appreciate its wrongfulness or to act in accord-
ance with an appreciation of its wrongfulness was diminished by reason of
mental illness or mental defect, the court may take the fact of such diminished
responsibility (capacity) into account when sentencing him.
 CULPABILITY 171

This subsection confirms that the borderline between criminal capacity and
criminal non-capacity is not an absolute one, but a question of degree. A person
may suffer from a mental illness yet nevertheless be able to appreciate the wrong-
fulness of his conduct and act in accordance with that appreciation. He will then,
of course, not succeed in a defence of mental illness in terms of section 78(1).
If it appears that, despite his criminal capacity, he finds it more difficult than a
normal person to act in accordance with his appreciation of right and wrong,
because his ability to resist temptation is less than that of a normal person, he
must be convicted of the crime (assuming that the other requirements for liabil-
ity are also met), but these psychological factors may be taken into account and
may then warrant the imposition of a less severe punishment.101
13 Psychopaths Although not all psychiatrists and psychologists are in
full agreement on every detail in the description of a psychopath, it can be
accepted for present purposes that the main characteristics of a psychopath are
the following: he is a person who, from an early age, has suffered from emo-
tional immaturity or instability, which manifests itself in an inability to comply
with the accepted moral and social norms. He acts impulsively, does not readily
learn from experience, is egocentric and has no feelings of compassion towards
others, feels little or no guilt, and accordingly finds it more difficult than a
normal person to appreciate the wrongfulness of his conduct or to act in ac-
cordance with such an appreciation.102 Psychopathy is a psychiatric concept
which has a wide range, and for this very reason is not of much value to the
lawyer who is trying to determine criminal liability.
Most authorities nowadays are of the opinion that for legal purposes psych-
opathy indicates an antisocial personality rather than a mental illness or mental
defect which excludes criminal capacity.103 However, psychopathy may, either
alone or cumulatively with other factors, lead to a finding of diminished respon-
sibility, provided the psychopathy is causally related to the crime in question
and of a sufficiently serious degree to weaken the psychopath’s self-control to
the extent that he is morally less blameworthy than a person endowed with
normal will-power would have been.104
Following certain recommendations by the Booysen Commission of Inquiry,
the Criminal Procedure Act was amended in 1993 by the insertion of sections
286A and 286B. These sections provide that if the court is satisfied that X
represents a danger to the physical or mental well-being of other persons and
that the community should be protected against him, the court must declare him
________________________

101 Sibiya 1984 1 SA 91 (A); M 1985 1 SA 1 (A); Director of Public Prosecutions, Trans-
vaal v Venter 2009 1 SACR 165 (SCA) par 47, 51.
102 The first sentence of this description of a psychopath is based upon a description accepted
by the court in Kennedy 1951 4 SA 431 (A) 434. The most comprehensive discussion in
our case law of the meaning of psychopathy and its effect on criminal liability is to be
found in Mnyanda 1976 2 SA 751 (A) and in Pieterse 1982 3 SA 678 (A). For other de-
scriptions of psychopathy, see the expert evidence quoted in J 1975 3 SA 146 (O) 150;
Lehnberg 1975 4 SA 553 (A) 559E; Phillips 1985 2 SA 727 (N); Kosztur 1988 3 SA
926 (A) 930–931; Lawrence 1991 2 SACR 57 (A) 66–67. See further Rumpff Report
ch 8; Davis 1982 SACC 143; 1983 SACC 259; Van Oosten 1992 De Jure 1.
103 Van Oosten 1992 De Jure 1 17–18.
104 Mnyanda supra 763–767; Pieterse supra 687; Phillips supra.
172 CRIMINAL LAW

a dangerous criminal. The court must then impose imprisonment for an indefin-
ite period and direct that he be brought before the court on the expiration of a
period determined by the court. Although these provisions do not refer expressly
to psychopaths, it is apparent that psychopaths will frequently be dealt with in
terms of these provisions.105
14 Incapacity to stand trial The discussion thus far of mental illness has
related only to cases in which X’s mental condition at the time of the commis-
sion of the alleged crime was at issue. Sometimes, however, it is not X’s mental
condition at the time of the commission of the alleged crime which is put at
issue, but his mental condition at the time of his trial. It stands to reason that a
court cannot try a mentally ill person. Such a person is incapable not only of
giving evidence properly, but also of either defending himself or of properly
instructing his legal representative. This is the position no matter what his
mental condition was at the time of the commission of the alleged crime. An
allegation that X is mentally ill at the time of his trial must therefore not be
confused with an allegation that he was mentally ill at the time of the commis-
sion of the alleged crime. The Criminal Procedure Act makes separate pro-
vision for each of the above two possibilities.106
The procedure to be followed if it is alleged that because of mental illness X
lacks the capacity to understand the proceedings, and can therefore not be tried,
is set out in section 77, read with section 79. As the provisions of these two
sections are primarily of procedural importance, they will not be set out and
discussed here. It is sufficient to mention that the investigation basically fol-
lows the same pattern as the investigation by experts where it is alleged that X
was mentally ill at the time of the commission of the alleged crime. Section 79
contains provisions relating to the number of psychiatrists who must conduct
the investigation, the committal of X to a mental hospital or other place for the
purposes of observation or investigation, the report to be drawn up by the
psychiatrists, and the adjudication of the report by the court. If the court finds
that X is capable of understanding the proceedings so as to make a proper
defence, the proceedings are continued in the ordinary way.107 If, however, the
court finds that X lacks this capacity, the court has a discretion to issue one of a
number of orders which are set out in detail in section 77(6). If, for example, X
is charged with a serious crime such as murder, the court must direct that X be
detained in a psychiatric hospital or a prison pending the signification of a judge
in chambers.108 After such a direction has been made, X may subsequently, at
any time when he is no longer mentally ill, be prosecuted and tried for the
alleged crime.109

________________________

105 For a discussion of these sections, see Bull 2001 2 SACR 674 (SCA).
106 S 77 deals with the capacity of the accused to understand the proceedings (alleged mental
illness at the time of the trial), and s 78 deals with mental illness at the time of the
commission of the alleged crime. Concerning the need for legal representation for X, as
well as a discussion of procedural matters in enquiries in terms of s 77, see Matu 2012 1
SACR 68 (ECB).
107 S 77(5).
108 S 77(6).
109 S 77(7).
 CULPABILITY 173

(iv) IMMATURE AGE

1 Summary of rules
(a) Criminal capacity may be completely absent because of X’s immature
age. In this respect South African law distinguishes between three age
groups, namely 0-9 years; 10-13 years; and 14 years and older.
(b) Children who have not yet completed their ninth year, in other words
who have not yet reached their tenth birthday, are irrebuttably pre-
sumed to lack criminal capacity. They can therefore never be con-
victed of any crime because of any act or omission on their part before
they have reached their tenth birthday.
(c) From the date that children have completed their ninth year, in other
words from the date upon which they have reached their tenth birth-
day, until they complete their thirteenth year, in other words until they
have reached their fourteenth birthday, they are rebuttably presumed
to lack criminal capacity. Children in this age group may be convicted
of a crime because of an act or omission on their part, provided the
state rebuts the presumption of criminal incapacity applicable to chil-
dren in this age group beyond reasonable doubt and provided, of
course, the state also proves that the children’s conduct complied with
the other elements of the crime of which they have been charged.110
(d) In the case of people between the ages of 14 and 21 years of age, the
normal principles applicable to all adults apply; it is presumed that at
the time of the act or omission such persons had criminal capacity, but
this presumption is rebuttable.

The words “irrebuttably presumed to lack criminal capacity” in statement (b)

means the following: if it is clear to a court that at the time of the commission
of the alleged crime X was a child who was not yet ten years old, it will not
even allow the prosecution to lead evidence with a view of proving that the
child was indeed endowed with criminal capacity at the time of the act. The
words “rebuttably presumed to lack criminal capacity” in statement (c) means
the following: if it is clear to a court that at the time of the commission of the
alleged crime X had been a child who was at least ten years of age but not yet
14 years, the court’s point of departure is that such a child lacked criminal
capacity, but the court will nevertheless allow the state (prosecution) to try to
convince it, through evidence or otherwise, that the child had indeed been
endowed with criminal capacity at the time of the commission of the alleged
crime.
A person who lacks criminal capacity because of youth cannot even be con-
victed as an accomplice to a crime. He can, of course, be used by another
person as an innocent instrument in the commission of a crime by such other
person.

________________________

110 K 1956 3 SA 353 (A); Mdukazi 1972 4 SA 256 (NC); M 1978 3 SA 557 (Tk); 558; M
1979 4 SA 564 (B) 566; Pietersen 1983 4 SA 904 (E) 907.
174 CRIMINAL LAW

2 Age limits laid down in Act 75 of 2008 The rules set out above are based
on the provisions of sections 7 and 11 of the Child Justice Act 75 of 2008. All
references hereafter to “the Act” are references to this Act. This Act has re-
placed the former common law provisions relating to the criminal capacity of
young persons.111 In reality the only substantial change in the law brought
about by the Act is the replacement of the first age limit, which according to the
common law had been seven years, by a new age limit of ten years. Practically
speaking, this amendment does not make much difference, because even before
the coming into operation of the Act the state in practice almost never prosecu-
ted a child who had been below the age of ten at the time of the commission of
the alleged crime.
3 Test laid down in Act to determine criminal capacity of children The
test to determine whether a child between the ages of ten and fourteen years
had criminal capacity is explicitly set out in section 11(1) of the Act. The sub-
section provides that, in order to prove the criminal capacity of a child in this
age group, the state must prove beyond reasonable doubt that at the time of the
commission of the alleged crime the child had the capacity firstly, to appreciate
the difference between right and wrong and secondly, to act in accordance with
that appreciation. In broad terms this test is in line with the general test to deter-
mine criminal capacity set out above.112 The first part of the test contains the
cognitive element and the second the conative element.
4 Test to determine criminal capacity in general The provisions of section
11(1) must be welcomed, because in the previous case law it was not completely
clear what the test was to determine the capacity of children below fourteen
years of age.
A good indication of the factors which a court must take into account in de-
ciding whether a child between the ages of ten and fourteen has criminal
capacity is to look at the factors which a prosecutor must, according to section
10, take into consideration when deciding whether a child in this age group
should be prosecuted. These factors include the following: the child’s educa-
tional level, cognitive ability, domestic and environmental circumstances, real
age and maturity at the time of the commission of the alleged crime and the
nature and seriousness of the alleged crime. From a procedural point of view a
court must also consider the contents of a probation officer’s assessment report
as set out in the Act.
Section 11(3) provides that a Magistrate or Child Justice Court may order an
evaluation of the criminal capacity of the child by a suitably qualified person,
which must include an assessment of the cognitive, moral, emotional, psycho-
logical and social development of the child.
It stands to reason that the closer a child approaches the age of ten, the
stronger is the presumption that he lacked capacity, and the nearer he approaches
fourteen years, the weaker is the presumption.113 The child’s personal experi-
ence also plays a role.
________________________

111 See s 7(3) of the Act.

112 Supra V B (i) 1.
113 K 1956 3 SA 353 (A) 358; Ngobese 2002 1 SACR 562 (W) 564f-g.
 CULPABILITY 175

5 Cognitive leg of test Section 11(1) requires the state to prove firstly, that
the child between ten and fourteen years had the capacity to appreciate the
difference between right and wrong. These words refer to the child’s capacity
to differentiate between right and wrong in general, and not to the child’s
capacity to appreciate the wrongfulness of the specific act which he had com-
mitted in the specific circumstances of the case – in other words taking into
account the specific type of crime he had allegedly committed and the specific
defences which might play a role in the circumstances of the case. Before the
coming into operation of the Act the courts expressly held that the state had to
prove that the child had the capacity to appreciate the wrongfulness of the act in
the latter (narrower) sense of the term.114
It is submitted that the abovementioned words in section 11(1) should be
interpreted in such a way that they refer to the capacity to differentiate between
right and wrong, bearing in mind the specific acts committed by X and the
specific circumstances of the case, as opposed to the difference between right
and wrong in general. Such an interpretation, which places a heavier onus on
the state, would accord with firstly, the rule relating to the interpretation of
statutes that statutory provisions should, as far as possible, be interpreted in the
light of the common law, and secondly, the provisions of section 28(2) of the
Constitution, which forms part of the Bill of Rights and which provides that the
child’s best interests are of particular importance in every matter concerning the
child.
Where common law crimes such as assault and theft are concerned, it is easier
for the state to prove that the child was aware of the wrongfulness of his con-
duct than where statutory crimes are concerned, especially if the latter are of a
fairly technical nature.115
6 Conative leg of test As far as the second leg of the test for criminal capaci-
ty set out in section 11(1) (ie, the conative leg of the test) is concerned, it must
be borne in mind that a child can be regarded as having criminal capacity only
if he has the necessary self-control and power of resistance to temptation.
Young children often act impulsively, or are otherwise influenced by older chil-
dren or adults to such an extent that their power of resistance are either absent
or considerably weaker than those of ordinary adult persons.116 Even before the
present Act came into force the courts had refused to convict children below
fourteen who have committed crimes under the influence of older persons,
whether family or friends.117

________________________

114 K supra 456; M 1978 3 SA 557 (Tk) 558; Ngobese supra 564i. For a valuable and crit-
ical analysis of the cognitive leg of the test as formulated in the Act, see Walker 2011
SACJ 33.
115 M 1979 4 SA 564 (B0566); Ngobese supra 564g.
116 Ngobese 2002 1 SACR 562 (W) 565.
117 Dikant 1948 1 SA 693 (O) 700–701; M 1978 3 SA 557 (Tk); Khubeka 1980 4 SA 221
(O); Pietersen 1983 4 SA 904 (E) 910H.
176 CRIMINAL LAW

C INTENTION
1 Description of concept

“Intention”, as this term is used in criminal law, means that a person

commits an act:
(1) while his will is directed towards the commission of the act or the
causing of the result;
(2) in the knowledge of
(a) the existence of the circumstances mentioned in the definitional elem-
ents of the relevant crime and
(b) in the knowledge of the unlawfulness of the act.

If X acts with his will directed towards the commission of the act but without
the knowledge referred to in (2)(a) and (b), he is said to act with so-called
“colourless intention”. “Colourless intention” corresponds more or less with the
meaning which intention has in everyday parlance, that is, the lay person’s
language used outside the courts.
In the law, and in criminal law in particular, the term “intention” is always
used in a technical sense, that is, a meaning which differs from the popular
meaning of the word in ordinary parlance. X acts with intention in the technical
meaning of the word if his will is directed towards the commission of the pro-
hibited act or the causing of the prohibited result while he has the knowledge
referred to in (2)(a) and (b). His intention or will is then “coloured” by the
knowledge referred to in (2)(a) and (b).
Lawyers are fond of referring to “coloured intention” by its Latin name do-
lus. By using the word dolus, one ensures that one is not referring to “colour-
less intention”, but to intention in the technical meaning which the word has in
legal terminology.
In paragraphs numbered 2 to 13 below, the discussion will mainly centre on
the meaning of “intention” in the sense of “colourless intention”, that is, the dir-
ection of the will towards performing the act or towards bringing about the spe-
cific result. In paragraphs 14 to 24 below, the discussion will mainly be devoted
to the requirements that X must have knowledge of the existence of the circum-
stances mentioned in the definitional elements (in other words, the requirement
that X must not be mistaken), as well as the requirement of knowledge of
unlawfulness.
2 Two elements of intention118 Intention, in whatever form, consists of two
elements, namely a cognitive (or intellectual) and a conative (volitional or
voluntative) element.
The cognitive element consists in X’s knowledge of the act, of the circum-
stances mentioned in the definitional elements and of the unlawfulness.

________________________

118 See Jescheck and Weigend 293–294; Maurach-Zipf ch 22 pars 1–2; Schönke-Schröder
n 9–14 ad s 15.
 CULPABILITY 177

The conative element consists in directing the will towards a certain act or
result: X decides to accomplish in practice what he has previously pictured to
himself in his imagination only. This decision to act transforms what was until
then only “day-dreaming” or “imagination” into intention.

Intention in the technical sense of the term can therefore be defined as the
will to commit the act or cause the result set out in the definitional elem-
ents of the crime, in the knowledge of the circumstances rendering such act
or result unlawful.

Defined even more tersely, one can say that intention is to know and to will an
unlawful act or a result. The following diagram illustrates these principles:

Knowledge Will
Intention = (Cognitive + (Conative
element) element)

of the presence
of the of the
act of the definitional unlawfulness
elements

3 Forms of intention There are three forms of intention, namely direct

intention (dolus directus), indirect intention (dolus indirectus) and what is
usually described as dolus eventualis. In a crime requiring intention it is suffi-
cient for the state to prove that X entertained any one of these forms of inten-
tion. The three forms of intention will now be discussed one by one.
4 Dolus directus

Direct intention (dolus directus) comprises a person’s directing his will

towards achieving the prohibited result or towards performing the prohibit-
ed act. This result or act is his goal. He desires the act or result.119

This form of intention comes closest to the everyday meaning of “intention”. In

this form of intention X is certain that he is committing the prohibited act or
that he is causing the prohibited result. He does not regard the commission of
the act or the causing of the result as a mere possibility. An example of this
type of intention is where X, having a grudge against Y with whom his wife has
fallen in love, awaits Y at Y’s home and upon his arrival, shoots Y through the
heart in order to kill him.
________________________

119 Ferreira 2004 2 SACR 454 (SCA) 475c–d; Humphreys 2013 2 SACR 1 (SCA) par 12.
178 CRIMINAL LAW

5 Dolus indirectus

In indirect intention (dolus indirectus) the prohibited act or result is not X’s
goal, but he realises that if he wants to achieve his goal, the prohibited act
or result will of necessity materialise.

For example, X is sitting in his neighbour’s (Y’s) house. From inside the house
he wants to shoot a bird which is outside. He realises that his shot will of neces-
sity shatter Y’s window-pane. Although he is not anxious to bring about this
result, he nevertheless decides to go ahead, aims at the bird and shoots the
window-pane to pieces. If he is subsequently charged with damaging Y’s prop-
erty, he cannot be heard to say that he meant to shoot only the bird, not to
damage the window-pane. It is evident from this example that this form of
intention may be present even though X does not desire the prohibited result.
The volitional element here consists in the fact that X directs his will towards
shooting the bird and decides to go ahead with it knowing full well that he will
necessarily also shatter the window-pane.
6 Dolus eventualis120

The definition of dolus eventualis is as follows: A person acts with inten-

tion in the form of dolus eventualis if the commission of the unlawful act
or the causing of the unlawful result is not his main aim, but:
(a) he subjectively foresees the possibility that, in striving towards his
main aim, the unlawful act may be committed or the unlawful result may
be caused, and
(b) he reconciles himself to this possibility.

Another way of describing component (b) is to say that X was reckless as to

whether the act may be committed or the result may ensue. However, it does
not matter whether component (b) is described in terms of “reconciliation with
the possibility” or in terms of “recklessness”.121
________________________

120 For general discussions of this form of intention, see Labuschagne 1988 SACJ 415–418;
Whiting 1988 SACJ 419–425; Loubser and Rabie 1988 SACJ 425–446; Paizes 1988
SALJ 636 ff; Snyman 1990 SALJ 365 ff.
121 For descriptions of dolus eventualis, see P 1972 3 SA 412 (A) 416: “The test for such
dolus is whether the appellant subjectively foresaw the possibility of death resulting
from his assault on the deceased, but persisted therein, reckless whether such possibility
became fact”; Sikweza 1974 4 SA 732 (A) 736: “[W]hether the accused foresaw the
possibility of death resulting from the unlawful act, yet persisted in his conduct reckless
whether death ensued or not”; Mavhungu 1981 1 SA 56 (A) 66G–H; Swanepoel 1983 1
SA 434 (A) 456H; Ngubane 1985 3 SA 677 (A) 685–686; Talane 1986 3 SA 196 (A)
208A; Majosi 1991 2 SACR 532 (A) 537c–d; Van Wyk 1992 1 SACR 147 (Nm) 157i–j;
De Oliveira 1993 2 SACR 59 (A) 65i–j: “that . . . [the appellant] . . . did foresee . . . the
possibility of death ensuing . . . but reconciled himself to that event occurring”; Maritz
1996 1 SACR 405 (A) 415a–b: “. . . nie alleen dat die dader die moontlike gevolge van
sy optrede voorsien het nie, maar dat hy die risiko daarvan bewustelik aanvaar het”;
Van Aardt 2009 1 SACR 648 (SCA) par 40; Humphreys 2013 2 SACR 1 (SCA) par 12;
Makgatho 2013 2 SACR 13 (SCA) par 10.
 CULPABILITY 179

Dolus eventualis is a form of intention which deviates from “intention” in its

ordinary sense. Sometimes writers or courts have referred to this form of inten-
tion not by its Latin name, but by expressions such as “constructive intention”
or “legal intention”. These expressions tend to give rise to confusion. The Latin
term dolus eventualis is the one generally used to describe this form of inten-
tion, and the one which will be used in the discussion which follows.
X acts with this form of intention if he directs his will towards a certain event
or result which for the sake of convenience will here be described as A, but
foresees that if he achieves A there is a possibility that another event or result,
B, might ensue. However, he does not allow himself to be deterred by the fore-
seen possibility that B may ensue, and proceeds with his original plan to bring
about A, indifferent as to whether B will ensue or not. In the course of commit-
ting the act, B does in fact ensue. In the eyes of the law he then has intention in
respect of B.
The following is an example of a situation in which X acts with this form of
intention: X wants to burn down a building. He foresees the possibility that
somebody (Y) may be inside it, but nevertheless decides to proceed with his
plan, not caring whether Y is in the building or not. He may even wish that Y is
not in the building. He decides to go ahead with his plan to set fire to the
building, “come what may”. He does not allow himself to be deterred by the
possibility that Y may be inside the building. He sets fire to the building. Y is
indeed inside the building, and dies in the flames. In the eyes of the law X in-
tentionally caused Y’s death. It is no defence for X to allege afterwards that this
intention was directed only at setting the building alight, and not at killing Y.
Another example is where X, standing on a bridge above a freeway, throws a
rock onto the road in which traffic is racing by beneath him. X knows that the
rock may or may not strike a vehicle. If the rock does strike a car and the ques-
tion arises whether he had the intention to strike a car, X cannot rely on the fact
that he was not sure whether the rock would strike a car or not.
If X has dolus eventualis, it is possible that he may in the eyes of the law
have the intention to bring about a result even though he does not wish the
result to follow. In fact, dolus eventualis may be present even though X hopes
that the prohibited result will not follow. In this form of intention the volun-
tative element consists in the fact that X directs his will towards event A, and
decides to bring it about even though he realises that a secondary result (event
B) may flow from his act.
In practice dolus eventualis is very important. It happens daily that X, who
has been charged with, for example, murder, in that he had struck Y with a
knife, admits to having struck Y with the knife but nevertheless alleges that he
never had the intention to kill Y, because he only wanted to “frighten” Y. If,
however, the court finds upon the evidence that X had indeed foreseen the pos-
sibility that his conduct may result in Y’s death and that he acted recklessly in
respect of this possibility, there are sufficient grounds for the court to find that
X had indeed killed Y intentionally.
7 Dolus eventualis: Foreseeing the result There are two requirements for
the existence of dolus eventualis. The first is that X should foresee the possi-
bility of the result, and the second is that he should reconcile himself to this
180 CRIMINAL LAW

possibility. The first may be described as the cognitive part of the test and the
second as the conative (or volitional) part of the test.
The first requirement deals with what X conceives to be the circumstances or
results of his act. There can be no dolus eventualis if X does not envisage those
circumstances or results. Dolus eventualis differs from dolus indirectus in that
X foresees the prohibited result not as one which will necessarily flow from his
act, but only as a possibility.122
The term “possibility” as used in this context is elastic: must it be a strong
possibility, or is a slight, remote or exceptional possibility also sufficient? The
answer is that dolus eventualis is absent if X foresees the possibility only as
remote or far-fetched. Any normal person foresees that there is a remote or
exceptional possibility that an everyday activity, such as driving a motor car,
may result in somebody else’s death, and if he nevertheless proceeds with such
an activity, it does not mean that he therefore has dolus eventualis in respect of
the result which he foresees only as a remote possibility. On the other hand,
dolus eventualis is not limited to cases where the result is foreseen as a strong
possibility. It is submitted that the correct approach is to assume that there must
be a real or reasonable possibility that the result may ensue. In Makgatho123 the
Supreme Court of Appeal in a unanimous judgment expressly endorsed this
view.
However, the fact that the possibility is remote may be of importance from an
evidential point of view. It may influence the making of deductions concerning
what X subjectively foresaw: the more remote (or improbable) the possibility
that the result might ensue, the more difficult it will be to find as a fact that X
indeed foresaw that possibility.124 Furthermore, if the possibility of the result
ensuing was remote or far-fetched, dolus eventualis will probably be absent in
that X did not reconcile himself to the possibility that the result might ensue. It
is difficult to see how one can reconcile oneself to a far-fetched possibility of
the result ensuing.
________________________

122 See the cases referred to in the previous footnote. That it is sufficient to foresee the possi-
bility (as opposed to the probability) of the result ensuing is evident from Nkombani
1963 4 SA 877 (A) 891C–D; Sigwahla 1967 4 SA 566 (A) 570B–C and Sikweza supra
736F.
123 2013 2 SACR 13 (SCA) par 9. For strong support of the proposition that what is
required is foresight of a reasonable possibility, see Van Wyk 1992 1 SACR 147 (Nm)
161b (per Ackermann AJA). This view of dolus eventualis was quoted with apparent
approval by the Supreme Court of Appeal in Van Aardt 2009 1 SACR 648 (SCA) par
39. Contra Qeqe 2012 2 SACR 141 (ECG), in which the court erroneously rejected an
argument that the foresight must be one of a reasonable possibility and opted for the
view that foresight of even a remote possibility suffices.
It is interesting to note the definition of intention in s 2(1) of the Prevention and
Combating of Corrupt Activities Act 12 of 2004 as well as s 1(6) of the Protection of
Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004, and
more particularly when a person is deemed to have knowledge of a certain fact in terms
of these acts. Both these Acts provide that X is deemed to have knowledge of a fact
inter alia if he believes that there is a reasonable possibility of the existence of that fact.
This is a strong indication that even the legislature requires a reasonable (as opposed to
a remote) possibility for dolus eventualis.
124 Dladla 1980 1 SA 1 (A) 4H; Shaik 1983 4 SA 57 (A) 62D–E.
 CULPABILITY 181

8 Dolus eventualis: Reconciling oneself to the ensuing result It does not

follow from the fact that X foresaw the result as a reasonable possibility that
dolus eventualis is therefore present. A person may foresee a result as possible,
and nevertheless lack dolus eventualis, if he decides or comes to the conclusion
that the result will not ensue from his act. Hence the second requirement for
this form of intention, namely that X must also have reconciled himself to the
possibility that the result may follow.
“Reconcile with the possibility” means that X decides to go ahead with his
actions even though he foresees the possibility that the prohibited result may
follow. To him it is immaterial whether this result flows from his actions or not:
he is not concerned about it. He does not allow himself to be deterred by the
prospect of the forbidden result flowing from his act. He is reckless in respect
of the prohibited result.125 By “reckless” is meant that X consciously accepts a
risk.126
There is almost never direct evidence of the existence of the second (cona-
tive) part of the test to determine dolus eventualis. A court almost always bases
its finding on whether the second part of the test has been complied with on
deductions or inferences from the facts.
Some writers are of the opinion that the second part of the test to determine
dolus eventualis (ie, the “volitional element”) is redundant, and that all that is
required for dolus eventualis is subjective foresight of the possibility of the
result ensuing, provided the possibility is not remote, but substantial or “con-
crete”.127 According to this view “recklessness” (the word often employed to
refer to the second part of the test) adds nothing to the first part of the test: if X
foresaw the possibility of the result but nevertheless proceeded with his act he
was in any event reckless. Recklessness, according to this view, can be absent
only if X foresaw the possibility but decided not to proceed with his act, in
which event he will escape liability on the basis that there was no unlawful act.128
The courts do not follow this view of dolus eventualis, but favour the ap-
proach set out above according to which the test for dolus eventualis always
includes a second (volitional) leg, namely X’s reconciling him to the possibility
of the result ensuing. Support for the courts’ approach may be found in the
consideration that intention always includes a reference to X’s will; intention
cannot consist merely in knowledge or appreciation of the existence of some
________________________

125 See the cases referred to supra under par 6 where dolus eventualis is defined, as well as
Dladla 1980 1 SA 1 (A) 4; Ngubane 1985 3 SA 677 (A) 685D–F and Maritz 1996 1
SACR 405 (A) 415a–b, For a discussion of the voluntative part of the test to determine
dolus eventualis, see De la Harpe and Van der Walt 2003 SACJ 207.
126 In Nkombani 1963 4 SA 877 (A) 896D Holmes JA stated: “To reck means to take heed
of something, so as to be alarmed or troubled thereby or so as to modify one’s conduct
or purpose on that account.”
127 Smith 1979 SALJ 81 92–93; Morkel 1981 SACC 162 173; 1982 THRHR 321 324; Paizes
1988 SALJ 636 638. These writers argue that although the courts almost invariably
mention the second part of the test in their formulation, the outcome of the case never
turns on an application of this second part of the test.
128 See the criticism by Smith 1979 SALJ 81 ff, especially 92–93, Morkel 1981 SACC 162
165–170; Bertelsmann 1975 SALJ 59 71–77; 1980 SACC 28 29–31; Paizes 1988 SACJ
636 639.
182 CRIMINAL LAW

fact.129 In Ngubane130 the Appellate Division considered this alternative view of

dolus eventualis but held unambiguously that “(t)he distinguishing feature of
dolus eventualis is the volitional component: the agent (the perpetrator) ‘con-
sents’ to the consequence foreseen as a possibility, he ‘reconciles himself ’ to it,
he ‘takes it into the bargain’.”
In Humphreys131 X was the driver of a minibus transporting school school-
children. The route he followed traversed a railway crossing controlled with
booms. When he approached the crossing the booms were already down and
cars were standing in front of the booms, waiting for the train to cross and the
booms to be lifted. Because the booms are positioned on different sides of the
railway line, they can be avoided, even when they are down, by overtaking the
line of vehicles parked in front of the boom on their right-hand side, approach-
ing the crossing in the lane destined for oncoming traffic and by then turning
sharply to the correct lane to pass the boom on the other side. This is exactly
what X did, despite the flashing warning lights. On entering the crossing the
minibus was hit by the train, with catastrophic consequences. Ten children were
fatally injured. Four survived, but suffered serious injury. X himself was
injured, but not fatally. He was charged with murder in respect of the ten chil-
dren who died, and attempted murder in respect of those who were fortunate to
survive.
X’s appeal to the Supreme Court of Appeal against his original convictions
of murder and attempted murder revolved around the issue of dolus eventualis.
It was beyond dispute that X had subjectively foreseen the possibility of his
conduct causing the death of those who died, but the question arose whether the
second leg of the test for dolus eventualis, namely the conative leg (reconcilia-
tion with the foreseen possibility of death) had been complied with. The court
(per Brand JA) held, by inferential reasoning, that X may have thought that the
collision would not occur. According to the court, he did not reconcile himself
to the possibility of the collision because such an inference would necessarily
entail that he had reconciled himself with his own death. Such an inference
could, according to the court, not be drawn beyond reasonable doubt, and there-
fore the conative leg of the test for dolus eventualis was not complied with. X’s
ten convictions of murder were accordingly set aside and replaced with ten con-
victions of culpable homicide. The four convictions of attempted murder were
also set aside and the original sentence of twenty years’ imprisonment was
replaced with a sentence of eight years’ imprisonment.
________________________

129 Ngubane 1985 3 SA 677 (A) 685D. See also Bertelsmann 1980 SACC 28 29.
130 1985 3 SA 677 (A) 685D. In Beukes 1988 1 SA 511 (A) 521–522 the Appellate Division
similarly accepted that both foresight and “reconciliation” were required for dolus eventu-
alis. Referring to the latter part of the test, the court made the following observations:
“’n Hof maak dus ’n afleiding aangaande ’n beskuldigde se gemoed uit die feite wat
daarop dui dat dit, objektief gesien, redelik moontlik was dat die gevolg sal intree. In-
dien so ’n moontlikheid nie bestaan nie word eenvoudig aanvaar dat die dader nie die
gevolg in sy bewussyn opgeneem het nie. Indien wel, word in die reël uit die blote feit
dat hy handelend opgetree het, afgelei dat hy die gevolg op die koop toe geneem het.
Dit kom my dus voor dat die tweede element normaalweg slegs bevredig is indien die
dader die intrede van die gevolg as ’n redelike moontlikheid voorsien het.” See also
Maritz 1996 1 SACR 405 (A) 415b–416f–g.
131 2013 2 SACR 1 (SCA).
 CULPABILITY 183

The court’s exposition of the principles relating to dolus eventualis cannot be

faulted. The only possible criticism of the case revolves around the court’s
application of the law to the facts. Is it really so far-fetched to allege that X did
not reconcile himself to the possibility of a collision and therefore to his own
death? X’s conduct was similar to the conduct of a person playing “Russian
roulette”. Such a person clearly reconciles himself with the possibility of his
own death. It is difficult to imagine more reckless behaviour than that of X.
One can agree with Hoctor’s description of the court’s application of the law to
the facts as resting on “very shaky foundations of logic and psychology”132 It is
submitted that the trial court’s finding that X did have dolus eventualis in
respect of the deaths or possible deaths of the passengers is to be preferred.
More acceptable is the judgment in Qeqe.133 Having stolen a car, X was
chased by the police. Trying to evade the police, he drove the car he stole as
fast as possible through a township street in the middle of the day, more or less
when the schoolchildren were on the streets, at one stage leaving the road and
driving on one pavement, then swerving to the opposite pavement. He drove in
a “zig-zag” way and cut corners. In the course of his manoeuvers he caused the
deaths of three children. He was convicted of the murders of all three children,
the court having found that he had the necessary dolus eventualis in respect of
the deaths of each of them. X foresaw the possibility of his act causing the
death of the children and he reconciled himself to this possibility.
9 Dolus eventualis and conscious negligence X does not comply with the
second part of the test to determine dolus eventualis if he foresees the possibil-
ity of the result, but decides that it will not flow from his actions. Here he does
not accept or reconcile himself to the result. Dolus eventualis is excluded even
if he unreasonably comes to the conclusion that the result will not follow,
because the test in respect of intention is purely subjective, as will be explained
below. The question is not whether he should have accepted that the result
would follow, but whether in actual fact he accepted that it would follow.
If he foresaw the result but unreasonably came to the conclusion that it would
not materialise, he was negligent. One may say that he should have realised that
the result would follow from his actions, but in fact did not realise it. He was
then negligent, for the test in respect of negligence is not subjective, but object-
ive. This form of negligence is known as conscious negligence (luxuria), in
order to distinguish it from unconscious negligence, where X is not even aware
of the possibility of the result, although he should have been aware of it.134
Conscious negligence is therefore not a form of intention, but a form of neg-
ligence.135 In Ngubane136 the Appellate Division confirmed that the difference
________________________

132 Hoctor 2013 SACJ 75 84. At 85 he describes the court’s reasons for dismissing the
judgment of the trial court as “rather underwhelming”. See also the commentary on the
case by Carstens 2013 SACJ 67 as well as the criticism of the court’s finding that the
second leg of the test for dolus eventualis has not been complied with by Watney 2013
TSAR 770, especially 776, who describes the court’s reasoning as “kunsmatig en speku-
latief” (“artificial and speculative”)
133 2012 2 SACR 41 (ECG).
134 On conscious negligence see Ngubane 1985 3 SA 677 (A) 685; Humphreys 2013 2
SACR 1 (SCA) par 15.
135 Humphreys 2013 2 SACR 1 (SCA) par 15.
136 1985 3 SA 677 (A) 685D–F.
184 CRIMINAL LAW

between dolus eventualis and conscious negligence is not to be found in the pres-
ence or absence of the foresight of the result (cognitive element), but in whether
or not X reconciled himself to the foreseen possibility (volitional element).
The above principles may be illustrated by the following example: X shoots
duck swimming on a lake. On the opposite side of the lake people are having a
picnic. He is aware of the presence of these people and realises that if he shoots
and the bullet misses the duck, it may hit one of the picnickers. Assume that,
although he does not wish to kill a picnicker, his attitude towards this foreseen
possibility is: “I don’t care”, “I can’t be bothered”, or “I’m going to shoot, no
matter what happens”. He shoots at the duck, but the bullet misses the duck and
strikes and kills a picnicker. He will then have dolus eventualis in respect of the
picnicker’s death and be guilty of murder.
Assume, however, that, having foreseen the possibility that the bullet may hit
a picnicker, he reasons as follows with himself: “I am a crack shot. In the past I
have often shot duck here. I have never missed one, and therefore a picnicker
will not be struck by a bullet.” If he then shoots and misses the duck and the
bullet strikes a picnicker, with fatal consequences, he lacks dolus eventualis; he
acts with conscious negligence only, provided it is clear that a reasonable per-
son, in his position, would not reason and act likewise.
In short, in the case of dolus eventualis, X hopes that the bullet will not hit a
picnicker. In the case of conscious negligence he bona fide believes that it will
not.137
10 Subjective test The test in respect of intention is purely subjective. The
court must determine what the state of mind of that particular person – the
accused (X) – was when he committed the act. When determining whether X
had intention, the question is never whether he should have foreseen the result,
but whether he foresaw it as an actual fact. To say that X “should have foreseen”
says nothing about what X actually thought or foresaw; it is simply comparing
his state of mind or conduct with another’s, namely the fictitious reasonable per-
son. To do this is to apply the test in respect of negligence, which is objective.
Intention always deals with “what is”, not with “what ought to be”. The latter
forms part of negligence. “What is” and “what ought to be” are two distinct
concepts. They do not overlap. The courts emphasise that the test to determine
intention is subjective:138 the court must try to imagine itself in X’s position
when he committed the act and determine whether he had the intention then (or
foresaw the possibility of the result and reconciled himself to this possibility).
11 Determining intention by inferential reasoning How does the state
prove in a court that X had intention at the time of the commission of the act?
Sometimes there may be direct evidence of X’s intention: if, in a confession,
in the course of being questioned at the stage of plea-explanation or when
giving evidence before the court, X admits that he acted intentionally, and if the
court believes him, there is of course no problem for the court to find that he in
fact acted intentionally. However, in the great majority of cases there is no such
________________________

137 Buda 2004 1 SACR 9 (T) 20e; Van Aardt 2009 1 SACR 648 (SCA) par 41.
138 Dube 2010 1 SACR 65 (KZP) par 6–8; Humphreys 2013 2 SACR 1 (SCA) par 13;
Makgatho 2013 2 SACR 13 (SCA) par 10.
 CULPABILITY 185

admission by X. X is under no obligation to give evidence, and even if he

decides to give evidence, he may decide falsely to deny that he had intention.
How can a court then determine whether X acted intentionally? X is, after all,
the only person who knows what his state of mind was at the crucial moment
when he committed the act.
There is no rule to the effect that a court may find that X acted with intention
only if he (X) admitted that he had intention – in other words, if there is direct
proof of intention. It is, after all, a well-known fact that many accused who in
fact did have intention, subsequently falsely deny in court that they acted inten-
tionally. If this happens, a court may base a finding that X acted intentionally
on indirect proof in intention. This means that the court may infer the intention
from evidence relating to X’s outward conduct at the time of the commission of
his act as well as the circumstances surrounding the events.
If a court is called upon to determine by indirect proof, that is, by inferential
reasoning, whether X had intention, it must guard against subtly applying an
objective instead of a subjective test to determine intention. It is dangerous for
a court to argue as follows: “Any normal person who commits the act which X
committed, would know that it would result in the death of the victim; therefore
X acted intentionally.” Although the court (judge or magistrate) is free to apply
general knowledge of human behaviour and of the motivation of such behav-
iour, it must guard against exclusively considering what a “normal”, “ordinary”
or “reasonable” person would have thought or felt in given circumstances. The
court must go further than this: it must consider all the circumstances of the
case (such as the possibility of a previous quarrel between the parties) as well
as all of X’s individual characteristics which the evidence may have brought to
light and which may have a bearing on his state of mind, such as his age,
degree of intoxication, his possible irascibility, possible lack of education or
low degree of intelligence. The court must then to the best of its ability try and
place itself in X’s position at the time of the commission of the act and then try
and ascertain what his (X’s) state of mind was at that moment – that is, wheth-
er, for example, he appreciated or foresaw the possibility that his act could
result in Y’s death.139
The effect of the application of the subjective test is that the court must guard
against “armchair reasoning”: as far as possible it must avoid, in the calm atmos-
phere of the court, imputing to X a state of mind based on facts which came to
light only after the act had already been committed,140 or based upon what the
judge or magistrate himself or an ordinary person would have thought had he
been in X’s shoes at the time of the act.
Courts sometimes use the expression that X “must have foreseen” death.
Read in its proper context this may mean nothing more than that the inference
is drawn by the court from the evidence that X in actual fact foresaw death.141
________________________

139 As to inferential reasoning in determining dolus eventualis, see Humphreys 2013 2

SACR 1 (SCA) par 14.
140 Sigwahla 1967 4 SA 566 (A) 570A; De Bruyn 1968 4 SA 498 (A) 507; Sataardien 1998
1 SACR 637 (C) 644.
141 Majosi 1991 2 SACR 532 (A) 538e; De Oliveira 1993 2 SACR 59 (A) 65i–j: “The only
reasonable inference to be drawn from the evidence . . . is that he must have foreseen,
[continued]
186 CRIMINAL LAW

However, if by “must have foreseen” is meant not “did in fact foresee”, but
“should (as a reasonable person) have foreseen”, the wrong test is being applied
in respect of intention, namely an objective instead of a subjective one. The
words “should”, “ought to” and sometimes even “must” describe the objective
test to determine negligence, not the subjective test in respect of intention. It is
inadvisable for a court to use expressions such as “must have” or “should have”
when indicating that X had intention. The courts have on numerous occasions
emphasised that one should not too readily proceed from “ought to have fore-
seen” to “must have foreseen” and hence to “by necessary inference in fact did
foresee” the possible consequences of the conduct.142
In deciding by way of inference what X thought or foresaw at the critical
moment a court undoubtedly considers objective factors such as the type of
weapon which X used, the seriousness of the injury or depth of the wound (if,
for example, X inflicted the wound with a knife), the part of Y’s body which
was wounded as well as the objective probabilities of the case and general
human experience.143 However, these factors are merely aids employed in
answering the ultimate question, namely whether X subjectively foresaw the
possibility of the prohibited consequence or circumstance and whether he
reconciled himself to that possibility. Thus, in the absence of any admission by
X, a court is unlikely to find that he foresaw a very improbable possibility or
that he reconciled himself to it.144
12 Intention and motive Intention must not be confused with the motive for
committing the crime. In determining whether X acted with intention, the
motive behind the act is immaterial.145 For this reason X is guilty of theft even
though he steals from the rich in order to give to the poor. A good motive may
at most have an influence on the degree of punishment. If it is clear that X acted
intentionally the fact that his motive was laudable or that one may have sym-
pathy for him cannot serve to exclude the existence of intention, as where he
administers a fatal drug to his ailing father in order to release him from a long,
painful and incurable illness.146 Furthermore, if X had the intention to commit
an unlawful act or to cause an unlawful result the fact that he did not desire to
commit the act or to cause the result in no way affects the existence of his
intention.147
13 Intention in respect of a circumstance The intention, and more particu-
larly X’s knowledge, must relate to the act, the circumstances or consequences
set out in the definitional elements of the crime and the unlawfulness. In the
discussion of dolus eventualis above, because the crime of murder was the
model used, it was usually stated that X must foresee the possible result of his
________________________

and by necessary inference did foresee, the possibility . . .”; Campos 2002 1 SACR 233
(SCA) 247e: “he must have known, and therefore by inference did know ...”
142 Maritz 1996 1 SACR 405 (A) 417b–e; Lungile 1999 2 SACR 597 (SCA) 602h–i;
Campos supra 242h-i; Dube 2010 1 SACR 65 (KZP) par 6–7.
143 Beukes 1988 1 SA 511 (A) 552D–E; Humphreys 2013 2 SACR 1 (SCA) par 13.
144 Dladla 1980 1 SA 1 (A) 4H.
145 Nkombani 1963 4 SA 877 (A) 889C; Van Biljon 1965 3 SA 314 (T) 318F–G.
146 Hartmann 1975 3 SA 532 (C) 534, 536.
147 Kgware 1977 2 SA 454 (O) 455E; Hibbert 1979 4 SA 717 (D) 722H.
 CULPABILITY 187

conduct. It is, however, only certain crimes (the so-called materially defined
crimes) which are defined in terms of the causing of a certain result (such as the
causing of death in cases of murder and culpable homicide). Formally defined
crimes are defined, not in terms of the causing of a certain result, but in terms
of the commission of a certain act in certain circumstances.
Intention in respect of a circumstance means that X knows or is aware of that
particular circumstance. For example: One of the requirements for a conviction
of the crime of possessing a drug in contravention of section 4 of the Drugs and
Drug Trafficking Act148 is that the object or article possessed must be a drug as
defined in the Act. Intention in respect of this requirement or circumstance
means knowledge by X that what is in his possession is an article described in
the Act as a substance which he is not allowed to possess (eg dagga or opium).
This intention may also exist in the form of dolus eventualis, namely if X
realises the possibility that the article or substance which he has obtained in his
possession may be dagga, but does not allow himself to be deterred by this
consideration and nevertheless proceeds to possess the substance (in other
words, he reconciles himself to this possibility).149
14 Mistake excludes intention The knowledge component of intention must
relate to the act, all the circumstances or consequences mentioned in the defin-
itional elements of the crime, as well as of the unlawfulness of the act. If X is
unaware of any of these factors, he lacks the intention to commit the crime. In
legal terminology it is said that there was a “mistake” or “error” on X’s part.
The following are two examples of mistake in respect of a circumstance set
out in the definitional elements of the crime:
(a) X is hunting buck. In the dusk he sees a figure which he thinks is a buck,
and shoots at it. It turns out to be a human being whom he has killed. He is
then not guilty of murder, since a requirement for murder is that it must be
a human being who has been killed: X had the intention of killing, not a
human being, but a buck. He was mistaken in respect of one of the defin-
itional elements of the crime of murder, namely the requirement that the
victim must be a human being.
(b) As X is leaving a meeting he takes a coat, which he believes to be his own,
from the coat-rack at the door. He has in fact taken Y’s coat, which re-
sembles his own. X is then not guilty of theft, for one of the requirements
for theft is that the property taken should belong to a person other than the
one taking it. X did not intend to commit theft, but merely to take his own
property. He was mistaken in respect of one of the definitional elements of
the crime, namely the ownership of the object taken.
As stated above, the intention must also relate to the unlawfulness of the act. If
there is no awareness of unlawfulness, there is similarly a mistake which excludes
intention. Because of its scope, awareness of unlawfulness merits a separate
discussion, which follows later.150
________________________

148 Act 140 of 1992.

149 This principle is borne out by the following decisions: Churchill 1959 2 SA 575 (A)
578; Z 1960 1 SA 739 (A) 743, 745; Kazi 1963 4 SA 742 (W) 750; Killian 1977 2 SA
31 (C) 36.
150 Infra par 23–24.
188 CRIMINAL LAW

15 Mistake need not be reasonable Whether there really was a mistake

which excludes intention, is a question of fact. What must be determined is X’s
true state of mind and his conception of the relevant events and circumstances.
The question is not whether the reasonable person in X’s position would have
made a mistake. The test in respect of intention is subjective, and if one com-
pares X’s state of mind and his view of the circumstances with those of the
reasonable person in the same circumstances, one is applying an objective test
in respect of intention, which is not warranted. To say that mistake excludes
intention only if it is reasonable, is the same as saying that it is essential that the
reasonable person should have made a mistake under those circumstances.151
Because the test is subjective, X’s individual characteristics, his level of
superstition, degree of intelligence, background and psychological disposition
may be taken into account in determining whether he had the required inten-
tion, or whether the intention was excluded because of mistake. The reason-
ableness of the mistake is at most a factor which, from an evidential point of
view, tends to indicate that there is indeed a mistake;152 however, it should not
be forgotten that in exceptional circumstances it is possible to make an un-
reasonable mistake.
It is usually also said that the mistake must be bona fide. Since there cannot
be such a thing as a mala fide mistake, a statement that the mistake must be
bona fide means only that the mistake must not be feigned, but must be genu-
ine, that is, that it must in actual fact have existed at the crucial moment.153
16 Material and immaterial mistakes Not every wrong impression of facts
qualifies as a mistake excluding intention and therefore affording X a defence.
Sometimes X may be mistaken about a fact or circumstance and yet not be
allowed to rely on his mistake as a defence. Only a mistake relating to the act,
the definitional elements and the unlawfulness may exclude intention. This is
the principle underlying the statement sometimes found in legal literature that
mistake excludes intention only if the mistake is material. A mistake is material
only if it relates to the factors described above.
One should therefore always first look at the definitional elements of the
particular crime. On a charge of rape, for example, the presence or absence of
consent by the woman to sexual penetration is material, because absence of con-
sent constitutes one of the definitional elements of rape. In the crime of incest
absence of consent to intercourse is not a definitional element of the crime, and
therefore in this crime the presence or absence of consent to intercourse is
immaterial: a mistaken belief by X that there was consent to intercourse does
not exclude the intention required for this crime.
17 Error in objecto The difference explained immediately above between
material and immaterial mistakes must be kept in mind especially in situations
in which X is mistaken about the object of his act. Such a mistake is known in
legal literature as error in objecto. Error in objecto is not the description of a
legal rule; it merely describes a certain type of factual situation. It is therefore
________________________

151 Jassane 1973 4 SA 658 (T); Sam 1980 4 SA 289 (T).

152 Rantsane 1973 4 SA 380 (O) 382G; Sam supra 294E.
153 Reabow 2007 2 SACR 292 (E) pars 20 and 21.
 CULPABILITY 189

wrong to assume that as soon as a certain set of facts amounts to an error in

objecto, only one conclusion (that X is guilty or not guilty) may legally be
drawn. Whether error in objecto excludes intention and is therefore a defence
depends upon what the definitional elements of the particular crime are. Murder
is the unlawful, intentional causing of the death of another person. The object
of the murder, according to the definitional elements, is therefore a human
being. If X thinks that he is shooting a buck whereas he is in fact shooting a
human being, he is mistaken about the object of his act (error in objecto), and
this mistake excludes the intention to murder.
What is the position if X intended to shoot Z but it subsequently transpires
that he mistook his victim’s identity and in fact shot Y? Here his mistake did
not relate to whether it was a human being he was killing, but to the identity of
the human being. Murder is committed any time a person unlawfully and inten-
tionally kills a human being, and not merely if a person kills that particular
human being who, according to his conception of the facts, corresponds to the
person he wanted to be the victim. For this reason X in this case is guilty of
murder. His mistake about the object of his act (error in objecto) will not ex-
clude his intention, because the mistake did not relate to an element contained
in the definition of the crime.
18 Mistake as to motive A mistake relating to a person’s motive for commit-
ting a crime is not a mistake relating to the act, the definitional elements or the
unlawfulness. Therefore this type of mistake does not exclude X’s intention.
Examples: (a) X appropriates Y’s umbrella because he thinks his own is lost
but he later discovers that it is not. (b) X kills Y because he thinks Y has
appointed him sole heir to his riches, but is subsequently disappointed to learn
that Y bequeathed his property to somebody else (or that Y was a pauper). This
type of mistake is not material, for a particular motive or inducement does not
form part of the definitional elements of the crimes of theft or murder.
The following example further illustrates these principles: X marries Y be-
cause he believes that his wife Z has died. Z is in fact still alive. This mistake
will exclude the intention to commit bigamy, because although it was X’s belief
which induced him to marry again, it simultaneously related to a circumstance
forming part of the definitional elements of bigamy, namely X’s married state.
19 Mistake relating to chain of causation154
(a) Description of mistake relating to chain of causation Mistake concern-
ing the chain of causation can only occur in the context of materially defined
crimes such as murder. X believes that the result will be brought about in a cer-
tain manner; the result does ensue, but in a manner which differs from that fore-
seen by X. For example, X sets about killing Y by pushing him off a bridge into
a river, in the expectation that he will drown; in fact, Y is killed because in his
fall he hits one of the pillars of the bridge. Another example is where X shoots
at Y, but misses; Y, whose heart and nerves are weak, in fact dies of shock.

________________________

154 See in general Van Oosten 1976 De Jure 65; 1982 TSAR 81, 220; Oosthuizen 1987 JJS
205; Snyman 1991 SACJ 50; Du Plessis 1989 TSAR 268; Paizes 1993 SALJ 493.
190 CRIMINAL LAW

The question whether a mistake relating to the causal chain of events excludes
intention arises only if X in fact envisages that the result would ensue because
of a particular cause, in other words that the chain of causation leading up to the
result (such as Y’s death) would follow a certain path. If he intends or envisages
the result without believing that the result would ensue in a certain way, the
question does not arise.
Before 1989 both the courts155 and writers on criminal law156 assumed that this
form of mistake did not exclude intention. The main reason for holding this view
was that the definitional elements of murder did not contain a requirement to the
effect that Y’s death had to ensue in a certain way only (such as by poisoning,
shooting or stabbing); murder is committed simply by causing Y’s death, no
matter in which way Y eventually dies.
(b) The present legal position In 1989 in Goosen157 the Appellate Division
analysed this form of mistake and held that a mistake relating to the causal
chain of events does exclude intention, provided the actual causal chain of
events differed materially from that envisaged by X. In other words, in materi-
ally defined crimes (ie, “result crimes”) X’s intention must, according to the
court, be directed at bringing about the result in substantially the same manner
as that in which it was actually caused.
In this case, X, together with two other persons, Z and W, had taken part in
the joint robbery of Y. The shot that actually killed Y had been fired by Z, but
the court, after examining the evidence, found that at the crucial moment when
Z had fired the shot, he (Z) had acted involuntarily because he had been fright-
ened by an approaching vehicle. The question was whether X, who had taken
part in the joint venture by driving the gang in a car to Y, could be convicted of
murdering Y on the ground of the shot fired by the co-member of the gang, Z.
X had known that Z had a firearm, and had foreseen that Z could fire at Y, but
had not foreseen that Y would die as a result of a bullet’s being fired involun-
tarily by Z.
In a unanimous judgment delivered by Van Heerden JA the Appellate Div-
ision found that there was a substantial difference between the actual and the
foreseen manner in which the death was caused, that X had not foreseen that
the death could be caused in this way, and that X’s misconception or mistake in
this regard excluded the intention to murder. The court did not want to amplify
the rule it laid down by specifying what criterion should be applied to distin-
guish between “material” (ie, “substantial”) and “immaterial” differences in the
manner in which death is caused. (In passing, it should be mentioned that the
judgment can be understood properly only on the assumption that the court

________________________

155 Butelezi 1963 2 PH H238 (D); Nkombani 1963 4 SA 877 (A); Masilela 1968 2 SA 558
(A), especially 573–574; Daniëls 1983 3 SA 275 (A) 332–333. See also Thabo Meli
[1954] 1 All ER 373 (PC). This is a decision of the Privy Council in England, in a case
serving before it on appeal from the former Basutoland where, as in South Africa, the
common law is Roman-Dutch law.
156 De Wet and Swanepoel 141–142; Van der Walt 1962 THRHR 70–74; Van Oosten 1976
De Jure 65; 1982 TSAR 81, 220; Oosthuizen 1987 JJS 205.
157 1989 4 SA 1013 (A) 1025–1026, discussed by Snyman 1991 SACJ 50; Visser 1990
THRHR 601; Burchell 1990 SALJ 168; Jordaan 1990 SACJ 208.
 CULPABILITY 191

applied the common purpose doctrine, which will be discussed below.158 One
has to accept that X, Z and W acted with a common purpose to kill Y, because
it is only on the assumption of the existence of such common purpose that the
act of Z, which caused the death, can be imputed to X.)
(c) Criticism of judgment in Goosen It is submitted that the judgment in
Goosen is incorrect. A mistake relating to the causal chain of events ought not
to exclude X’s intention, since in result crimes such a form of mistake is not
material. The reason why it is not material is that the intention required in result
crimes does not include knowledge of the precise time and way in which the
result is brought about; all that is required is that X foresee that his act will
cause the proscribed state of affairs.159 The definitional elements of murder do
not require that death be brought about in a specific way (such as by poisoning,
stabbing the victim in the heart or hurling him from a cliff); all that is required
is that X’s conduct in general should cause Y’s death. The court’s attempt to
distinguish previous cases which held that this type of mistake does not exclude
intention, is unconvincing.
The problem with the Appellate Division’s approach to the subject in Goosen
is that the court failed to give any indication of how to determine whether the
actual causal chain of events differed materially from the causal chain envis-
aged by X. The only possible criterion which comes to mind, and the only one
borne out by the German-law sources on which the court relied, is that one
should enquire whether the actual (deviating) events fell outside the bounds of
what, according to human experience, can be expected to flow from the type of
act that X committed. Put differently, one must be able to describe the deviating
events as “abnormal”, “unforeseeable” or “improbable”. However, the problem
with this criterion is that it is exactly the same as the criterion used to determine
whether there is “legal causation”; more particularly, it is the same as the
criterion to determine whether, according to the theory of adequate causation,
there is a causal link between X’s conduct and the proscribed result (Y’s death).
This brings one to the crux of the criticism against the judgment in Goosen:
the moment one tries to define the concept of “material deviation” one inevit-
ably applies the same criteria used to determine legal causation; examples of
key words or concepts in this connection are “improbable”, “unexpected”,
“remote” and novus actus interveniens. If a court were to follow Goosen, it
would mean that the court would, when answering a question relating to culp-
ability (intention), have to apply a criterion which it has already applied earlier
when investigating the question of causation. One does not solve a problem
arising in one element of a crime by applying a test which one has already
________________________

158 Infra VII B 7–16.

159 The following statement by Ashworth 200 is completely correct: “When D sets out to
commit an offence by one method but actually causes the prohibited consequence in a
different way, the offence may be said to have been committed by an unforeseen mode.
Since most crimes penalizing a result (with fault) do not specify any particular mode of
commission, it is easy to regard the difference of mode as legally irrelevant. D intended
to kill V; he chose to shoot him, but the shot missed; it hit a nearby heavy object, which
fell on V’s head and caused his death. Any moral distinction between the two modes is
surely too slender to justify recognition . . . Pragmatism is surely the best approach
here, and English law is generally right to ignore the unforeseen mode.”
192 CRIMINAL LAW

employed in another, earlier element of the crime. In short: the problem incur-
red in the type of factual situation under discussion is not a problem relating to
culpability (or intention), but to causation. If, in a set of facts such as that in
Goosen a court does not want to hold X criminally liable for murder, the reason
for not holding him liable must be found in the absence of a legal causal link
between X’s conduct and Y’s death, and not in the absence of an intention to
kill.
(d) Courts seem not to follow judgment in Goosen In the light of the above-
mentioned problems encountered when trying to apply the judgment in Goosen,
it comes as no surprise to find that the courts – and more particularly the same
Appellate Division that heard the Goosen case, in subsequent cases in which
there were strong probabilities that X was mistaken as to the causal chain of
events, decided the matters without applying or even referring to the novel rule
applied in Goosen.
Thus in Nair160 X assaulted Y and threw Y’s body into the sea. It was uncer-
tain whether Y died as a result of X’s assault upon him or as a result of drown-
ing. There was a reasonable possibility that X might have meant to let Y die by
drowning, but that Y in fact died as a result of X’s assault, or the other way
around. X was, quite correctly, convicted of murder. It never even occurred to the
court to investigate the question of mistake relating to the causal chain of events.
It is submitted that the judgment in Nair in correct, since a mistake relating to the
precise way in which Y would die is irrelevant.
In Lungile161 X and others executed an armed robbery in a shop. A policeman
intervened and fired shots, one of which killed Y, an innocent bystander. The
probabilities were overwhelming that X never anticipated that Y could be killed
by the lawful conduct of a policeman. It was a strange and unexpected way in
which Y was killed. Nevertheless the court – correctly, it is submitted – con-
victed X of murder without even considering the question whether X’s possible
mistake as to the causal chain of events might exonerate X.
The facts and judgment of the Supreme Court of Appeal in Molimi162 likewise
clearly reveal the existence of a mistake relating to the causal chain. Neverthe-
less the court confirmed a conviction without even considering the judgment in
Goosen.
It is submitted that the judgments in Nair, Lungile and Molimi are to be pre-
ferred to that in Goosen. Moreover, people who undertake a robbery (as the
accused in the Goosen case) and who foresee that somebody may be killed in
the course of the robbery but nevertheless decide to go ahead with the robbery,
are as a rule not bothered by the precise way (precise causal chain) in which Y
will be killed.
________________________

160 1993 1 SACR 451 (A).

161 1999 2 SACR 597 (SCA). For an analogous set of facts in which in which the Appeal
Court likewise confirmed X’s conviction of murder without even considering whether
his mistake relating to the precise causal chain might have excluded his intention, see
Nhlapo 1981 2 SA 744 (A) 751
162 2006 2 SACR 8 (SCA). The argument in the text may also apply to the reasoning in
Gedezi 2010 2 SACR 363 (WCC) par 60.
 CULPABILITY 193

20 The going astray of the blow (aberratio ictus)163

(a) Description of concept Aberratio ictus means the going astray or missing
of the blow. It is not a form of mistake. X has pictured what he is aiming at
correctly, but through lack of skill, clumsiness or other factors he misses his
aim, and the blow or shot strikes somebody or something else. Examples of
aberratio ictus are the following:
(i) Intending to shoot and kill his enemy Y, X fires a shot at Y. The bullet
misses Y, strikes a round iron pole next to Y, ricochets and strikes Z, who
is standing a few paces to Y’s right, killing him.
(ii) X wishes to kill his enemy Y by throwing a javelin at him. He throws a
javelin at Y, but just after the javelin has left his hand, Z unexpectedly runs
out from behind a bush and in front of Y and the javelin strikes Z, killing him.
(iii) Intending to kill his enemy Y, X places a poisoned apple at a spot where
he expects Y to pass, expecting Y to pick up the apple and eat it. Howev-
er, Z, and not Y, passes the spot, picks up the apple, eats it, and dies.
What all these examples have in common is that the blow aimed at Y went
awry and struck somebody else, namely Z. Aberratio ictus differs from error in
objecto. In error in objecto there are only two parties, whereas in aberratio
ictus there are three parties. The question that arises is whether in the eyes of
the law X had intention also in respect of Z’s death.
(b) Two opposite approaches A perusal of this subject in the legal literature
reveals two opposite approaches regarding the question of whether X had
intention in respect of Z’s death.
(i) Transferred intention approach According to the one approach the ques-
tion of whether X in an aberratio ictus situation had the intention to kill Z
should be answered as follows: X wished to kill a person. Murder consists
in the unlawful, intentional causing of the death of a person. Through his
conduct X in fact caused the death of a person. The fact that the actual
victim of X’s conduct happened to be somebody other than the particular
person that X wished to kill (Y), ought not to afford X any defence. In the
eyes of the law X intended to kill Z, because X’s intention to kill Y is
transferred to his killing of Z, even though X might perhaps not even have
foreseen that Z might be struck by the blow.
The Anglo-American legal systems, which for the most part follow this
approach, refer to this approach as the “doctrine of transferred malice (or
intent)”, because X’s intent in respect of Y’s killing is transferred to his
killing of Z.
(ii) Concrete figure approach The adherents of the opposite or alternative
approach argue as follows: One can accept that X intended to kill Z only
if X knew that his blow would strike the specific figure represented by Z,
or if he had foreseen that his blow might strike the figure or object actually
struck by the blow and had reconciled himself to this possibility. In other
words, one merely applies the ordinary principles relating to intention,
and more particularly dolus eventualis. If X had not foreseen that his blow
________________________

163 See generally Burchell in Fiat Iustitia. Essays in memory of OD Schreiner 165–171;
Snyman 1998 SACJ 1.
194 CRIMINAL LAW

might strike Z he lacked intention in respect of Z’s death and cannot be

convicted of murder.
According to this second approach, X’s intention to kill Y cannot serve
as a substitute for the intention to kill Z. In order to determine whether X
had the intention to kill Z the question is not simply whether he had the
intention to kill a person, but whether he had the intention to kill that
particular concrete figure which was actually struck by the blow. Only if
this last-mentioned question is answered in the affirmative can one
assume that X had intention in respect of Z. According to this approach,
what is crucial is not an abstract “intention to kill a person” but an inten-
tion “to kill the actual, concrete figure struck by the blow”.
(c) Weight of authority in case law follow concrete figure approach To a
certain extent, support for the transferred intent approach can be found in South
African case law before 1950,164 but the weight of authority in the case law
after this date supports the concrete figure approach. The Supreme Court of
Appeal has not yet spoken the last word on the question how cases of aberratio
ictus should be judged. In Mtshiza165 a single judge of Appeal, Holmes JA,
delivered a judgment in which he clearly followed the concrete figure approach
to the subject. This was an appeal not against a conviction, but against sentence.
The other judges of Appeal who heard the matter delivered a separate judgment
in which they upheld the appeal against sentence on grounds completely differ-
ent from those given by Holmes JA. According to the rules relating to the prece-
dent system in our law, the Supreme Court of Appeal is still free to choose any
of the abovementioned two approaches to the matter. However, the views of
Holmes JA in this case were followed in a string of judgments in Provincial
Courts.166 The weight of authority in our case law therefore favours the con-
crete figure approach.
(d) Concrete figure approach the correct one; criticism of transferred intent
approach It is submitted that the concrete figure approach is correct and that
the judgment of Holmes JA in Mtzhiza should therefore be followed. If the
Supreme Court of Appeal has to decide one day which of the two approaches
ought to be followed, the court ought to give preference to the concrete figure
approach. The reasons for this view are the following:167
Firstly, the doctrine of transferred intent originated at a time in the history of
English law when attempt to commit a crime was not yet punishable. It was

________________________

164 Xulu 1943 AD 616; Kuzwayo 1949 3 SA 761 (A); Koza 1949 4 SA 555 (A). It cannot
be denied that our common-law writers adopted an approach to this subject that is in
substantial agreement with the transferred intent approach. See Voet 48 8 2; Matthaeus
48 5 3, 12, 13; Damhouder 87 7; Moorman 2 1 20.
165 1970 3 SA 747 (A).
166 Tissen 1979 4 SA 293 (T); Raisa 1979 4 SA 541 (O); Matle 1984 3 SA 748 (NC)
751B–C; Ncube 1984 1 SA 204 (ZS); Mkansi 2004 1 SACR 281 (T). Mavhungu 1981 1
SA 56 (A) was not a case of aberratio ictus, but rather one of error in objecto. The court
nevertheless declared that the approach to aberratio ictus by Holmes JA in Mtzhiza
“accord[s] with modern thought and the trend of recent decisions of this court . . .”(67H).
167 For criticism of the transferred intent approach in general, see Snyman 1998 SACJ 1
12 ff.
 CULPABILITY 195

argued that if the law does not establish X’s intent by way of a fiction, X in a
typical aberratio ictus situation would not be guilty of any crime.168 This argu-
ment disappears if – as is the case in modern English and other legal systems –
attempt is punishable, because the law can then express its displeasure against X,
who had not foreseen the possibility of his blow striking Z, by convicting X at
least of attempted murder in respect of Y. It comes as no surprise that even
Anglo-American writers are severely critical of the whole doctrine of transferred
intent.169
Secondly, the argument that “the intention follows the bullet”, as the doctrine
has on occasion been described,170 is plainly a fiction; it is what the American
writer Prosser171 calls “an arrant, bare-faced fiction of the kind dear to the heart
of the medieval pleader”.
Thirdly, since about 1950 our courts have clearly adopted a subjective test to
determine intention.172 The concrete figure approach is more in accordance
with the subjective test for intention than the transferred intent approach, which
works with a fictitious intent.
Fourthly, the doctrine of transferred intent does not sufficiently take into
account the possibility that X might have desisted from executing his act had he
known before the time that somebody else might be struck.
Fifthly, the doctrine of transferred intent amounts to an application of the
taint doctrine (ie, the versari in re illicita doctrine). This doctrine was rejected
by the Appellate Division in 1965 in Bernardus.173 The rejection of this doc-
trine makes it impossible to argue that X is guilty of murdering Z merely
because the shot that killed Z was fired in the course of the commission of an
unlawful or immoral act, namely shooting at Y or hurling a javelin at him.174
If one adopts the concrete figure approach, it follows that in aberratio ictus
situations one merely applies the ordinary principles relating to culpability
(intention and negligence) in order to determine whether X had culpability in
respect of Z’s death; one does not apply any specific rule (such as “a transferred

________________________

168 Prosser 1967 Texas Law Review 650 653; Ashworth in Glazebrook (ed) Reshaping the
Criminal Law. Essays in honour of Glanville Williams 77 86.
169 Williams CL 135, who refers to the doctrine as a “rather arbitrary exception to normal
principles”; Gordon 332, who states: “it does seem objectionable to deal with aberratio
ictus by way of transferred intent, if only because transferred intent is objectionable”;
Ashworth in Glazebrook (ed) Reshaping the Criminal Law. Essays in honour of Glanville
Williams 77 87; Prosser 1967 Texas Law Review 650, who describes the doctrine as “that
curious survival of the antique law”; Husak 1996 Notre Dame Journal of Law, Ethics
and Public Policy 65 84, who states that “despite my best efforts to provide a charitable
and sympathetic interpretation of the doctrine, I am ultimately unable to make much
sense of the claim that the culpable states required for murder are the kind of things that
can or do transfer”; Karp 1978 Columbia Law Review 1249 1629; Stuart Canadian
Criminal Law 196–197, who describes the doctrine as “an historical aberration”.
170 In the American decision of Batson (1936) 96 SW 2d 384 389 (Mo).
171 1967 Texas Law Review 650.
172 Supra V C 10–11.
173 1965 3 SA 287 (A). On the taint doctrine (versari in re illicita) see supra V A 8.
174 Mtshiza 1970 3 SA 747 (A) 751–752; Raisa 1979 4 SA 541 (O).
196 CRIMINAL LAW

intent rule”) additional to the general rules relating to culpability. Aberratio ictus
should be viewed merely as a description of a set of facts which, like any other
set of facts, is to be judged and evaluated according to the ordinary rules relating
to culpability.
(e) Judging aberratio ictus situations From the minority judgment of
Holmes JA in Mtshiza it is clear that a factual situation in which there is an
aberratio ictus should be judged as follows:
1 X will normally always be guilty of attempted murder in respect of Y , that
is, the person he wished to, but did not, kill.
2 As far as X’s liability in respect of the person actually struck by his blow
(Z) is concerned, there are three possibilities:
(a) If he had foreseen that Z would be struck by the blow, and had recon-
ciled himself to this possibility, he had dolus eventualis in respect of
Z’s death and is guilty of murder in respect of Z.
(b) If X had not foreseen the possibility that his blow might strike Z, or if
he had foreseen such a possibility but had not reconciled himself to this
possibility, he lacked dolus eventualis and therefore cannot be guilty of
murder. However, this does not necessarily mean that, as far as Z’s
death is concerned, X has not committed any crime. If the evidence re-
veals that he caused Y’s death negligently, he is guilty of culpable
homicide. This will be the case if the reasonable person in X’s position
would have foreseen that the blow might strike Z.
(c) Only if it is established that X had neither intention (in these instances
mostly in the form of dolus eventualis) nor negligence in respect of Z’s
death, does it mean that X is not guilty of any crime in respect of Y’s
death.
(f ) Aberratio ictus in crimes other than murder and culpable homicide In
the discussion of aberratio ictus thus far the only examples used concerned the
causing of another’s death. However, aberratio ictus is not peculiar to cases of
murder and culpable homicide: it may also emerge from the facts in charges of
other crimes which require intention, such as assault,175 injury to property and
crimen iniuria. Furthermore, the same principles must be applied even if X
aimed the blow not at a human being (Y) but at an animal, a tree or, for that
matter, any other object. The principles are the same if X puts poison into a
pond in order to kill birds, and a cow – or even a human being – drinks the
poisoned water,176 or (within the context of crimen iniuria) if X sends porn-
ographic photos through the post to Y but the photos are accidentally delivered
to Z, who sees the photos and feels offended.
21 Dolus indeterminatus, dolus generalis177 Dolus indeterminatus and dolus
generalis mean the same. If X’s act is directed not at a particular person, but at
anybody who may be affected by his act, he acts with dolus indeterminatus or

________________________

175 As in Raisa 1979 4 SA 541 (O); Matle 1984 3 SA 748 (NC) 750–751.
176 Ncetendaba 1952 2 SA 647 (R).
177 On these forms of dolus, see Nkombani 1963 4 SA 877 (A) 892; Mavhungu 1981 1 SA
56 (A) 66.
 CULPABILITY 197

dolus generalis. For example, in Jolly178 X derailed a train and in Harris179 X

detonated a bomb in the Johannesburg station. These perpetrators did not care
who would be killed in the train or in the station. In both cases X acted with
political motives. As far as these perpetrators were concerned, anybody might
have been killed by their actions. Intention is obviously present in cases of
dolus indeterminatus and dolus generalis.
Dolus indeterminatus is not a form of intention apart from dolus directus,
dolus indirectus or dolus eventualis. It means merely “the intention directed at any
indeterminate victim”. A person can therefore act with dolus indeterminatus and
dolus eventualis simultaneously. Because in cases of dolus indeterminatus and
dolus generalis X did not care who would be struck by his blow, he can never
because of the going astray of the blow (aberratio ictus) succeed with a defence
that he lacked the intention in respect of the victim actually killed by his blow.
22 Intention in the “wild shootout situations” By using the concept of
dolus generalis it is easier to answer the seemingly difficult question as to the
existence of intention in situations where there is a wild shootout.
Assume that X1, X2 and X3 decide to commit an armed robbery. They are
confronted by the police. A wild shootout between the two groups breaks out.
X1 as well as a police official are killed in the shootout. Ballistic tests reveal
the surprising fact that X1 was not killed by a bullet fired by a police official,
but by a bullet fired by X2 (in other words one of X1’s own comrades), and that
the police official was not killed by one of the robbers, but by a bullet fired by
another police official. Can the three robbers be convicted of both murders?
It would seem that the courts answer this question in the affirmative, for the
following reasons: X1, X2 and X3 foresaw the possibility that people might be
killed in the course of the robbery, and the inference may also be drawn that, by
persisting in their plan of action despite this foresight, they reconciled them-
selves to this possibility.180 It is submitted that the courts’ handling of this type
of situation is correct. A group of people who engage in a wild, reckless shoot-
out with another group realise that the course of the action which they have
activated may have an unexpected result, and they reconcile themselves with
this possibility. It is perfectly possible to construe both dolus eventualis and
dolus indeterminatus on the part of the robbers.
23 Knowledge of unlawfulness It was stated above that intention consists of
two elements, the cognitive (knowledge) and the volitional (will).181 The cogni-
tive element (ie, the knowledge which is required of X) can, for the sake of
convenience, be subdivided into two subsections, the first being knowledge of
the existence of the circumstances contained in the definitional elements of the
________________________

178 1923 AD 176.

179 1965 2 SA 340 (A).
180 Nhlapo 1981 2 SA 744 (A); Lungile 1999 2 SACR 597 (SCA); Dhlamini, unreported,
but discussed by De la Harpe and Van der Walt 2003 SACJ 207. The liability of the
three robbers is also based upon an application of the doctrine of common purpose,
which is discussed infra VII B 7–16. Mistake relating to the chain of causation ought
not to afford any of the robbers a defence, despite the judgment in Goosen 1989 4 SA
1013 (A), discussed and criticised supra par 19.
181 Supra par 2.
198 CRIMINAL LAW

crime, and the second, knowledge of the unlawfulness of the act. If X is unaware
of the existence of the circumstances contained in the definitional elements, he
labours under the type of mistake discussed above.182 It remains only to discuss
the second part of the cognitive element of intention, namely knowledge or
awareness of the unlawfulness.
Knowledge of unlawfulness means at least that X is aware that his conduct is
not covered by a ground of justification. Here, as with knowledge of the circum-
stances set out in the definitional elements, the knowledge referred to is of facts,
not of law. Secondly, knowledge of unlawfulness also means that X is aware
that his conduct constitutes a crime in terms of the law. Here, it is knowledge of
the law, not of facts, which is involved. The requirement that X must also be
aware of the relevant legal provisions will be discussed below.183
Examples of situations where X is mistaken about the existence of a ground
of justification are the following:
(a) Y leaves his home in the evening to attend a function. When he returns
home late at night, he discovers that he has lost his front-door key. He de-
cides to climb into the house through an open window. X, his wife, is woken
by a sound at the window. In the darkness she sees a figure climbing
through the window. She thinks it is a burglar, the person who has recently
raped a number of women in the neighbourhood. She shoots and kills the
person, only to discover that it is her own husband whom she has killed.
She has acted unlawfully, because she cannot rely on private defence: the
test in respect of private defence is, in principle, objective and in a case
such as this her state of mind is not taken into account in order to deter-
mine whether she has acted in private defence. Although she intended to
cause the death of another human being, she will not be guilty of murder,
for her intention did not extend to include the unlawfulness of her act. She
thought that she was acting in private defence. This is a case of what is
known as putative private defence.184
(b) X takes Y’s briefcase in order to use it himself. He is under the impression
that Y had given him permission to use it. However, there was a misunder-
standing: Y had given no such permission. X will then not be guilty of
theft, despite the fact that he had appropriated for himself a movable cor-
poreal thing belonging to another. The act was unlawful, because there
was no consent to the taking. (In theft consent to the taking renders the
taking lawful.) However, intention was lacking: although X was not mis-
taken about the presence of the definitional elements (he knew that what he
was taking was a movable corporeal thing belonging to another), he was
mistaken about the unlawfulness of his conduct. He thought that there was
a ground of justification, namely consent, rendering his conduct lawful.
There is ample authority in our case law for the rule that knowledge of unlawful-
ness forms part of intention.185
________________________

182 Supra pars 14–17.

183 Infra par 24.
184 De Oliveira 1993 2 SACR 59 (A) 63h–j.
185 Ntuli 1975 1 SA 429 (A) 436F, in which Holmes JA declared: “Dolus consists of an
intention to do an unlawful act”; Sam 1980 4 SA 289 (T) 297; Adams 1986 4 SA 882
[continued]
 CULPABILITY 199

24 Ignorance or mistake of law186

(a) Introduction As mentioned in the discussion under the previous heading,
knowledge of unlawfulness is not restricted to a knowledge of certain facts
(awareness of the fact that there are no grounds of justification), but also in-
cludes knowledge of the law: in principle X must know that the law forbids his
conduct as a crime. Expressed negatively, this means that X must in principle
not be mistaken concerning the relevant legal provisions. In both statements
above, the words “in principle” were used because, as will be explained later,
there ought, in my opinion, to be an exception to the rule that ignorance of the
law is a defence: avoidable or unreasonable ignorance of the law ought, in my
opinion, not to be an excuse. This, however, is not the position in our case law.
In the discussion which follows the emphasis will initially be on the present
law applied by the courts (paragraphs (b) to (e)). Thereafter (in paragraphs ( f )
and (g)) the rules presently applied in our law will be criticized and my indi-
vidual opinion on the matter will be set out.
(b) The law before 1977 Before 1977 the courts held that ignorance or mis-
take of law was not a defence, even if it was unavoidable or excusable.187 This
rule was usually expressed in the maxims (hailing from English law) that
“ignorance of the law is no excuse” (ignorantia iuris neminem excusat) and
“everybody is presumed to know the law”. The idea that every person is pre-
sumed to know the law has been sharply criticised: nobody, not even the most
brilliant full-time lawyer, could keep abreast of the whole of the law, even if he
reads statutes, government gazettes and law reports from morning to night.
(c) The judgment in De Blom In 1977 our law on this subject was radically
changed as a result of the decision of the Appellate Division in De Blom.188 In
this case X was charged inter alia with contravening a certain exchange control
regulation according to which it was a crime for a person travelling abroad to
take jewellery worth more than a certain amount of money out of the country
without prior permission. The Appellate Division accepted that culpability was
a requirement for this statutory crime, although it did not specify which form of
culpability, intention or negligence, was required. X’s defence on this charge
was that she did not know that such conduct constituted a crime. The Appellate
Division held that she was truly ignorant of the relevant prohibition. The Appel-
late Division upheld her defence of ignorance of the law, and her conviction on
this charge was set aside.
Rumpff CJ declared that it had to be accepted that the cliché “every person is
presumed to know the law” no longer had any foundation and that the view that
“ignorance of the law is no excuse” could, in the light of the present-day view
________________________

(A) 889D–E; Campher 1987 1 SA 940 (A) 955D–E, in which Viljoen JA declared:
“Wederregtelikheidsbewussyn is ’n elementum essentiale van skuld”; Collett 1991 2 SA
854 (A) 859; De Oliveira 1993 2 SACR 59 (A) 63h–i; Van Zyl [1996] 1 All SA 336
(W) 340a–b; Joshua 2003 1 SACR 1 (SCA); Mostert 2006 1 SACR 560 (N) 569f–g.
186 See generally Van Rooyen 1974 THRHR 18; Rabie 1977 De Jure 4; 1985 THRHR 332;
1994 SACJ 93; Dlamini 1987 THRHR 43; 1989 SACJ 13.
187 Werner 1947 2 SA 828 (A) 833; Sachs 1953 1 SA 392 (A) 409; Tshwape 1964 4 SA
327 (C); Lwane 1966 2 SA 433 (A).
188 1977 3 SA 513 (A).
200 CRIMINAL LAW

of culpability, no longer have any application in our law.189 If, owing to ignor-
ance of the law, X did not know that her conduct was unlawful, she lacked
intention; if negligence was the required form of culpability, her ignorance of
the law would have been a defence if she had proceeded with the necessary
caution to acquaint herself with what was expected of her.190 The court did not
discuss the question whether even unreasonable, avoidable or negligent ignor-
ance of the law also constituted a defence, but a careful perusal of the judg-
ment191 and of the views of writers quoted by the court with approval, can lead
to only one conclusion, namely that a purely subjective test was introduced to
determine whether X acted with culpability if charged with a crime requiring
intention: mistake of law, even if it is unreasonable, excludes intention.
(d ) Meaning of “knowledge” It is not only if X is convinced that a legal rule
exists that he has knowledge of it: he also has such knowledge if he is aware of
the possibility that the rule may exist, and if he reconciles himself to this possi-
bility (dolus eventualis).192 Nor need he know precisely the number of the sec-
tion or statute forbidding the act, or the exact punishment prescribed: for him to
be liable it is sufficient that he be aware in general terms that his conduct
amounts to a crime.193 Furthermore, the difference between crimes requiring
intention and those requiring only negligence must not be forgotten. It was em-
phasised in De Blom194 that it is only in respect of the first-mentioned category
of crimes that actual knowledge of the legal provision is required for liability.
In crimes requiring negligence it is sufficient for the purposes of liability that X
failed to exercise the required care and circumspection in acquainting himself
with the relevant legal provisions.
(e) Obtaining a legal opinion Before De Blom it was held in a number of
cases that it is no defence for X to allege and even prove that before committing
the act in question he obtained a lawyer’s opinion on the legality of the pro-
posed conduct, if it subsequently appears that the opinion was wrong.195 How-
ever, it would seem that this rule will not survive the decision in De Blom: a
person who goes to the trouble of obtaining legal opinion before he acts, cannot
be put in a worse position than a person who fails to obtain such an opinion.
Since, according to De Blom, the latter now has a defence if he is ignorant of
the law, it would be grossly unfair to refuse that defence to the former.196 Bona
________________________

189 At 529.
190 At 532. See the application of this principle in Du Toit 1981 2 SA 33 (C); Bailey 1981 4
SA 187 (N) 190 and Waglines (Pty) Ltd 1986 4 SA 1135 (N).
191 See especially 532E–H.
192 Bezuidenhout 1979 3 SA 1325 (T) 1330H; Hlomza 1983 4 SA 142 (E) 145; Hlomza
1987 1 SA 25 (A) 31–32.
193 Hlomza 1987 1 SA 25 (A) 32.
194 Supra 532F–H.
195 Sachs 1953 1 SA 392 (A) 409; Kaba 1970 1 SA 439 (T) 445–445; Colgate-Palmolive
Ltd 1971 2 SA 149 (T) 154–156.
196 Reids Transport (Pty) Ltd 1982 4 SA 197 (E) 199; Hoffman 1983 4 SA 564 (T) 566;
Barketts Transport (Pty) Ltd 1986 1 SA 706 (C) 712G. Cf also Abrahams 1983 1 SA
137 (A) 147D–E. In cases such as Longdistance (Pty) Ltd 1986 3 SA 437 (N), Waglines
(Pty) Ltd 1986 4 SA 1135 (N) and Longdistance (Natal) (Pty) Ltd 1990 2 SA 277 (N)
the courts made certain observations concerning the circumstances in which X may rely
on a legal opinion obtained by him before he started to act, but in these cases X was
[continued]
 CULPABILITY 201

fide advice obtained from a civil servant on the interpretation of a statute ought
to be accepted as a defence.197
( f ) Criticism of judgment in De Blom The positive value of the decision in
De Blom is that it abolished the untenable and illogical presumption that every-
body knows the law, as well as the unreasonably harsh rule that ignorance of
the law can never be a defence. However, it is submitted that the court erred in
not placing any limitation on the scope of this defence, and more particularly
that it erred in applying a purely subjective test in crimes requiring intention,
thereby recognising ignorance of the law as a defence even if such ignorance
was avoidable. The reasons for this submission are the following:
Firstly, this aspect of the decision is incorrect from a legal-historical point of
view. Neither Roman198 nor Roman-Dutch law allowed simply all forms of
ignorance of the law to operate as a defence in crimes of intent. The overall
impression one gets from a reading of the views of the Roman-Dutch writers on
this issue is that they were prepared to recognise ignorance of the law as a
defence only if the ignorance was unavoidable (invincibilis) or not due to neg-
ligence on the part of X.199
Secondly, this aspect of the decision cannot be justified from a legal-
comparative point of view. Not one of the well-known Western legal systems
with which the South African law is usually compared goes so far as to recog-
nise even avoidable mistake of law as a ground excluding intention. This in
itself is highly significant: a closer scrutiny of these legal systems reveals that
the rejection of this defence is by no means a mere coincidence; it is based on a
well-reasoned recognition of certain basic values underlying criminal liability –
such as the principle that a person is not merely an individual, but also a social
being who not only has rights but also certain duties which he owes society.200
________________________

charged with crimes requiring negligence, and not intention. In Claassens 1992 2 SACR
434 (T) 440 the court held that a client should be entitled to rely on the legal advice
which he has obtained from an attorney or an advocate unless there are indications that
the advice might be unreliable, such as eg where the advice is obviously absurd or where
the lawyer who is consulted is clearly “out of his depth”.
197 Zemura 1974 1 SA 584 (RA) 592–593.
198 D 22 6 2; D 22 6 9 pr; D 22 6 9; D 32 11 4; D 39 4 16 5; D 48 5 39 (38) 2; D 48 10 15
pr; Rein 215 ff. For a more detailed discussion of the Roman law sources, the corre-
sponding discussion in earlier editions of this book (Snyman’s Criminal Law) up to and
including the 3rd edition may be consulted.
199 Grotius De Jure Belli ac Pacis 2 20 43 2; Zoesius ad D 22 6 1; Merula 1 4 5 4; Voet 22
6 2–4; Van der Linden 2 1 5; Damhouder 59 8; Matthaeus 27 2 12; Van Leeuwen Cens
For 1 5 1 4. For a more detailed discussion of the Roman-Dutch law sources, the corre-
sponding discussion in earlier editions of this book (Snyman’s Criminal Law) up to and
including the 3rd edition may be consulted.
200 In Anglo-American law ignorance of the law is not regarded as a defence, except where
X relies on a so-called “claim of right”. See Smith and Hogan 97–101; Allen 87–88;
Ashworth 233 ff. As far as the USA is concerned, see La Fave 490–494; Robinson 2
373 ff; Fletcher 736 ff; s 2.04 (3) of the Model Penal Code. For the position in Scottish
law, see Gordon 1 403 ff.
As far as German law is concerned, s 17 of the criminal code provides that a person
acts without “Schuld” (culpability) if at the time of his act he lacked the appreciation of
the unlawfulness of his act, provided the ignorance of the law is unavoidable. If it was
avoidable it is not a defence, but may lead to mitigation of punishment. See Jescheck
[continued]
202 CRIMINAL LAW

The third and perhaps most important objection to the application in De Blom
of a purely subjective test to determine intention in cases of mistake of law, is
that the judgment is based upon wrong principles. Implicit in this judgment is
that even avoidable or unreasonable mistakes of law exclude intention. This
wrong view is based upon the opinion of Professor De Wet and of subsequent
writers who followed him, and De Wet’s opinion is in turn derived from Ger-
man criminal-law theory of about the nineteen-twenties. According to this view
culpability is purely subjective in character, and even in cases in which X relies
on a mistake of law, a purely subjective test is to be applied. This extreme
subjective-psychological characterisation of culpability has been rejected even
in Germany, the country in which it originated.
It comes as no surprise to find that this view is followed nowhere in the
world,201 because culpability, even in the context of crimes of intent, always has
a normative, that is, a judgmental, character. Culpability refers to the grounds
upon which X may fairly be blamed for his wrongdoing, and blame invariably
incorporates a value judgment. It is more than a mere mechanical inquiry into
what X knew or did not know. One cannot determine a person’s culpability by
merely measuring him against, or comparing him to, himself; one must measure
him against a standard outside himself.202
It is submitted that it is wrong simply to allow all mistakes of law as a de-
fence. Apart from the considerations already mentioned which link up with the
normative theory of culpability, there have always been other considerations of
a practical, utilitarian nature which militate against recognising all mistakes of
law as a defence. One of these arguments is that to allow such a defence would
lead to a situation comparable to one in which the law loses its objectivity: a
________________________

and Weigend 449 ff; Schönke-Schröder ad s 14; Maurach-Zipf ch 37 and 38; Jakobs
540 ff; Roxin ch 21.
In Switzerland, ignorance of the law is no defence; it may only constitute a ground for
the mitigation of punishment, and then only if there is sufficient ground for such ignor-
ance (“aus zureichenden Gründen”). See s 20 of the Swiss Penal Code; Trechsel 158 ff.
In my opinion the latter proviso means that the mistake must be reasonable. Neither is
ignorance of the law a defence in the Netherlands, since colourless intention is sufficient.
See Hazewinkel-Suringa-Remmelink 380 ff; Van Bemmelen 125–127; Politoff and Koop-
mans 103–104. In Belgium a mistake of law is a defence only if it was unavoidable, ie,
if the mistake was “onoverwinlik”, in other words “niet aan de dader kan worden ver-
weten, maw indien hem self geen fout treft mbt . . . het strabaar karakter ervan” – Van
den Wyngaert 265. According to s 122–3 of the new French Code Pénal of 1992, a per-
son is not guilty of a crime if because of a mistake of law he believed that his conduct
was lawful, provided the mistake of law was unavoidable (“par une erreur sur le droit
qu’elle n’était pas en mesure d’éviter”). In Austria ignorance of the law is a defence only
if the ignorance is not blameworthy; it will be blameworthy if X fails to find out what
legal rules are applicable to his particular field of operation – see s 9 of the Austrian
Penal Code; Triffterer 430 ff.
In Appleton 1982 4 SA 829 (ZS) 831A the Supreme Court of Zimbabwe refused to
follow the judgment of the South African Appellate Division in De Blom. S 16 of the
new Transkeian criminal code (Act 9 of 1983 of Transkei), which was enacted after the
decision in De Blom, stipulates that ignorance of the law is not a defence.
201 See the legal-comparative overview in the previous footnote.
202 See the discussion supra V A 9 and 10 of the normative and psychological concepts of
culpability.
 CULPABILITY 203

court would not have recourse to a yardstick applicable to everybody in society.

Its yardstick would be the individual accused’s own subjective view of what the
law is. If this argument were taken to its logical conclusion, it would mean that
there would no longer be only one legal system in a particular society, but as
many “legal systems” as there were individual members of the society.203 An
argument such as this one, like other utilitarian arguments,204 is important and
cannot simply be dismissed as meaningless.205
It comes as no surprise to discover that even the courts themselves have on
occasions departed from the above-mentioned subjective De Blom test to deter-
mine whether X’s mistake of law had excluded his intention. In a number of
cases, notably Molubi 206 and Coetzee,207 the courts have convicted X of crimes
requiring intention despite the fact that, because of a mistake of law, he was
ignorant of the material provisions of the law; the courts in these cases based
their decisions on the consideration that X had embarked on a “specialised activ-
ity”, that persons who do this should take steps to acquaint themselves with the
law applicable to such an activity, and that X had failed to do this and should
accordingly not succeed with a defence of ignorance of the law. However,
although this “specialised activity rule” was mentioned in De Blom, it was meant
by Rumpff CJ to apply to crimes of negligence only, for it is merely a reason
for holding that X failed to act in a way in which the reasonable person in his
position would have acted.208 One is tempted to speculate whether these cases
________________________

203 On this argument, see especially Hall 382 ff. See also Stribopoulos 1999 Criminal Law
Quarterly 227 263: “Permitting such a defence would make each person a law unto
themselves, allowing their own knowledge of the law to determine its applicability
towards them and prejudicing those unfortunate enough to know what the law is.”
204 Such as the argument that if ignorance of the law were an excuse, society would become
lax in that it would not readily go to any trouble to ascertain the content of the law, for
the individual would know all along that he would not be punished if he contravened
the law through ignorance.
205 If one disregards the normative character which culpability has even in crimes of intent,
and limits culpability to a mere psychological concept, what will a court do if X relies
on belief in witchcraft and that he honestly believed that he acted lawfully by killing Y,
whom he regarded as a witch who was responsible for the thunderbolt that killed anoth-
er person? If the whole investigation into culpability revolves solely on X’s subjective
belief in what the law is, will the court find him not guilty of murder?
206 1988 2 SA 576 (B). In this case the court confirmed X’s conviction of common assault
despite the fact that X thought that his conduct was justified. For an analysis and criti-
cism of this case, see Snyman 1988 SACJ 457 and 1994 SALJ 1.
207 1993 2 SACR 191 (T). In this case X, a funeral undertaker, was charged with the un-
usual common-law crime of violating a corpse. She had been requested by a certain mine
authority to remove the heart and lungs of a miner who had died, and she acceded to the
request. However, in terms of certain legislation only a medical practitioner is allowed
to perform the task of removing organs from a corpse, but X was unaware of these pro-
visions. X was nevertheless convicted of the crime, which is a crime requiring intention.
For a discussion of the case, see Snyman 1994 SALJ 1.
208 See eg the words “riglyne vir die bepaling van culpa” and “redelikerwys verwag [kan]
word” at 531H and 532A respectively of De Blom 1977 3 SA 513 (A). The same in-
terpretation was placed upon this part of the De Blom judgment in Du Toit 1981 2 SA 33
(C) 39–40; Longdistance (Natal) (Pty) Ltd 1990 2 SA 277 (N) 283F–I; Claassens 1992
2 SACR 434 (T) 438h–i. Cf also Adams 1993 1 SACR 330 (C). For cases in which X
was charged with a crime requiring intention and in which the courts may at least by
[continued]
204 CRIMINAL LAW

should merely be dismissed as unfortunate misinterpretations of De Blom, or

whether they should be viewed as proof that the courts in certain circumstances
consciously or unconsciously treat pleas of ignorance of the law in a way that
differs from the rule set out in that case. It is submitted that the latter is indeed
the case.
It is and remains a glaring anomaly that in countries abroad in which the
incidence of crime does not nearly approach the alarming proportions encoun-
tered in South Africa, ignorance of the law is not regarded as an excuse, or
otherwise limited as an excuse to situations where the ignorance was unavoid-
able. In contrast in South Africa, where society is threatened to be engulfed by
a crime wave, we follow a rule relating to ignorance of the law which can be
described as the most lenient, liberal, “criminal-friendly” in the world! This
lamentable state of affairs is all due to the incorrect concept of culpability, and
more specifically the psychological concept of culpability, followed in this
country.
(g) Suggested law reform It is submitted that ignorance or mistake of law
should operate as a defence which excludes intention only if the ignorance or
mistake is reasonable. If X could and should have known the law, he ought not
to be allowed to succeed with a plea of ignorance, for his ignorance would then
be unreasonable. This is, for all practical purposes, the same as saying that to
succeed as a defence, ignorance of the law must have been unavoidable, and
this in turn is for all practical purposes the same as saying X’s ignorance should
not stem from negligence. There is a duty on every person to acquaint himself
with the contents of the law, especially those rules which apply to his particu-
lar profession or which deal with a particular specialised activity he is under-
taking.209

D NEGLIGENCE
1 General It is not only those unlawful acts which are committed intention-
ally which are punishable. Sometimes the law also punishes unlawful acts
which are committed unintentionally, or the unintentional causing of results,
namely if X acts or causes a result negligently. Generally speaking, these are
cases where X’s conduct does not comply with a certain standard of care
required by the law. This standard is to be found in what a reasonable person

________________________

implication have rejected a plea of ignorance of the law on the ground that X should
have known the law, see Nel 1980 4 SA 28 (E) 35E–H (a case which was criticised –
correctly, it is submitted – by Milton 1980 SACC 305; Van der Merwe 1982 SALJ 430
434–435 and Van Rooyen 1982 De Jure 361 362); Lekgathe 1982 3 SA 104 (B) 108–
109; Madihlaba 1990 1 SA 76 (T) 80G–H.
209 Ashworth 234–235 is completely correct where he declares: “Thus, to argue that a person
might be convicted despite ignorance of the law is . . . to forsake the atomistic view of
individuals in favour of a recognition of persons as social beings, with both rights and
responsibilities within the society in which they live . . . One way of maintaining the
general duty to know the law, while allowing exceptions based on respect for individual
autonomy, would be to provide that a mistake of law might excuse if it is reasonable.”
See also Whiting 1978 SALJ 1 5, who similarly argues that mistake of law in crimes of
intention ought to be a defence only if the mistake is reasonable.
 CULPABILITY 205

would have foreseen in the particular circumstances and the care which such
reasonable person would have exercised in the circumstances.
Whereas intention is often referred to in the legal literature as dolus, neg-
ligence is often referred to as culpa. Intention and negligence are the two forms
of culpability. Just as there can be culpability in the form of intention only if at
the time of engaging in the conduct X was endowed with criminal capacity,
culpability in the form of negligence can likewise be present only if it is clear
that at the time of engaging in the conduct X was endowed with criminal
capacity. As a rule negligence is a less serious or blameworthy form of culp-
ability than intention.
2 General comparison between intention and negligence In crimes of
intention X is blameworthy because he knew or foresaw that his conduct was
forbidden and that it was unlawful but nevertheless proceeded to engage in the
conduct. In crimes of negligence, on the other hand, X is blameworthy because
he did not know or foresee something or did not do something, although accord-
ing to the standards of the law he should have known or foreseen something or
should have performed an act. Intention, therefore, always has a positive charac-
ter. X willed or knew or foresaw something. Negligence, on the other hand,
always has a negative character: X did not will or know or foresee something,
although according to legal standards he should have known or foreseen it.
The test to determine negligence is (subject to certain exceptions which will
be explained later) objective. As was pointed out above, the test to determine
intention is subjective, since the court must consider X’s real knowledge and
visualisation of the facts and of the law. When it is said that the test for negli-
gence is objective, what is meant is that the court must measure X’s conduct
against an objective standard, that is, a standard outside himself. This standard
is that which a reasonable person in the same circumstances would have fore-
seen and would have done.
3 Crimes in respect of which negligence is the form of culpability Culp-
able homicide and a certain form of contempt of court210 are the only common-
law crimes in respect of which the form of culpability required is negligence.
Intention is the form of culpability required in respect of all the remaining
common-law crimes. On the other hand, there are numerous statutory crimes in
respect of which negligence is the required form of culpability.
4 Test to determine negligence The following test is generally accepted as
the complete test to determine negligence:211

________________________

210 Namely contempt of court committed by a newspaper editor in whose paper commen-
tary is published concerning a pending case. See Harber 1988 3 SA 396 (A) and infra
X A 20.
211 Wells 1949 3 SA 83 (A) 88; Kruger v Coetzee 1966 2 SA 428 (A) 430; Motau 1968 4
SA 670 (A) 677; Van As 1976 2 SA 921 (A) 927–929; SANTAM v Nkosi 1978 2 SA 784
(A) 791–792; SANTAM Versekeringsmaatskappy v Swart 1987 4 SA 816 (A) 819–820;
Ngubane v SA Transport Services 1991 1 SA 756 (A) 776–777; Barnard v SANTAM
Bpk 1999 1 SA 202 (SCA) 213; Minister of Safety and Security v Mohofe 2007 2 SACR
92 (SCA) par 5.
206 CRIMINAL LAW

A person’s conduct is negligent if

1 the reasonable person in the same circumstances would have foreseen
the possibility
(a) that the particular circumstance might exist; or
(b) that his conduct might bring about the particular result;
2 the reasonable person would have taken steps to guard against such a
possibility; and
3 the conduct of the person whose negligence has to be determined
differed from the conduct expected of the reasonable person.

The conclusion that the relevant person was negligent can only be drawn once
all three abovementioned requirements have been complied with.
5 Abbreviated way of referring to negligence An abbreviated way of
referring to negligence is simply to say that X did not conduct himself as the
reasonable person would have conducted himself in the same circumstances, or
– expressed even more briefly – that X acted unreasonably. Sometimes neg-
ligent conduct is briefly referred to by saying “he must have done that” or “he
should have done that” or “he ought to have known or foreseen or done that”.
These everyday expressions are merely other ways of stating that a reasonable
person would not have acted in the same way as X did.
6 Negligence both a definitional element and a form of culpability
(a) Dual meaning of negligence The expression “negligence” has a dual
meaning. When somebody says that X was negligent, he in fact alleges two
things. In the first place he alleges that X’s conduct (act or omission) was
performed in a certain way. Secondly, he alleges that X’s conduct was blame-
worthy. In so far as the allegation of negligence refers to the way in which X
conducted himself, the negligence forms part of the definitional elements of the
crime concerned. In so far as it refers to X’s blameworthiness, it constitutes a
form of culpability besides intention.
(b) Negligence as a definitional element – objective test The definitional
elements of crimes of negligence require that the commission of the forbidden
act or the causing of the forbidden result take place in a certain way, namely a
way which falls short of the degree of care or circumspection required by the
law in the circumstances. It is this aspect of negligence which is referred to
when it is alleged that X’s conduct differed from that of a reasonable person.
This is the objective test of negligence, in other words the failure to comply
with the objective standard of reasonableness.
This objective test cannot be the test of culpability, because culpability deals
with X’s personal blameworthiness, and the mere objective non-compliance
with a certain external standard does not necessarily mean that X was also culp-
able. Before X can be blamed for his failure to comply with the required stand-
ard, his personal knowledge and abilities must be taken into consideration. He
can be blamed only if one could have expected of him as an individual to com-
ply with the required standard, and this will be the case only if X, taking into
account his personal abilities, knowledge and experience, could have complied
with the required standard.
 CULPABILITY 207

That negligence necessarily forms part of the definitional elements becomes

clear if what was said above212 about the definitional elements is kept in mind:
the definitional elements contain the minimum requirements for liability neces-
sary to make the definition understandable and meaningful. The definitional
elements of a crime of negligence will not be meaningful without reference to
negligence in the sense of a “mode of conduct”. One cannot, for example,
describe culpable homicide merely as “the causing of somebody else’s death.”
It is the negligent causing of somebody else’s death. For the same reason it was
argued above213 that in the crime of murder intention forms part of both the
definitional elements and of culpability; otherwise the definitional elements of
murder would simply read: “The causing of somebody else’s death.” The def-
initional elements of two different crimes cannot be the same. Since the only
difference between murder and culpable homicide is that whereas intention is
required for the former negligence is required for the latter, it follows that
intention and negligence must form part of the definitional elements of murder
and of culpable homicide respectively.
In Ngubane214 the Appeal Court explicitly recognised that negligence “con-
notes a failure to measure up to a standard of conduct”.
(c) Negligence as form of culpability – test not always objective The mere
fact that somebody fails to comply with the objective test, does not necessarily
mean that such a person acts culpably. He can be said to have acted culpably
only if in the light of all the circumstances the inference can be drawn that he
can personally be blamed for his failure to comply with the standard of care,
and this will be the case only if the legal community could reasonably have
expected of him to comply with the required standard of care. In short: whether
X has complied with the standard of the reasonable person, is a matter pertain-
ing to the definitional elements of the crime; whether he can personally be
blamed for his non-compliance, is a matter pertaining to his culpability.215
This latter inquiry (into culpability) cannot be undertaken with complete
disregard for subjective factors pertaining to X. If subjective factors were never
to be taken into consideration in determining negligence, it would mean that
negligence would be relevant only as one of the definitional elements of the
crime concerned, and that culpability would not be a requirement for the crime.
However, neither culpable homicide nor other crimes of negligence can be
described as strict liability offences, that is, offences dispensing with the elem-
ent of culpability. In order to be blamed for his negligence, X must, of course,
have had criminal capacity at the time of his conduct, but the inquiry into culp-
ability in crimes of negligence is not limited to an inquiry into X’s capacity.
Apart from the subjective factors taken into account when inquiring into X’s
capacity, other subjective factors such as X’s physical, intellectual or cognitive
abilities ought also to play a role.
________________________

212 Supra III A 1.

213 Supra III A 8.
214 1985 3 SA 677 (A) 687E–F.
215 This is also the construction of negligence in German criminal-law theory. See Jescheck
and Weigend 563; Schönke-Schröder n 111 ff ad s 15. For more support for this con-
struction of negligence, see Fletcher 484–486; Hart Oxford Essays in Jurisprudence,
first series (1961) 29, 46.
208 CRIMINAL LAW

(d) Rejection of purely subjective test Certain subjective factors must there-
fore be taken into account. However, this does not mean that the test to deter-
mine culpability in the form of negligence is purely subjective. If the test were
completely subjective, it would mean that X would only be measured “against
himself”, that is, against his own standards. One cannot determine a person’s
blameworthiness by measuring him only against his own standards. A purely
subjective “test” would place too high a premium on personal autonomy at the
expense of social responsibility. Such a “test” would, in any event, be imprac-
tical because a court cannot, in each case in which X is charged with a crime of
negligence, undertake a complete inquiry into what knowledge he had, his per-
sonal and cultural background, his personal abilities, his degree of irascibility,
and so forth.
(e) Telescoped test applied in practice In everyday life the great majority of
people who are endowed with criminal capacity but who fail to act the way the
hypothetical reasonable person would have acted in the circumstances, can be
blamed for their conduct and are therefore negligent. The percentage of people
in this category is so overwhelming that it may perhaps constitute as much as
ninety-nine percent of everybody whose negligence has to be established. In
practice the inquiry into negligence as part of the definitional elements (object-
ive test) and the inquiry into negligence as a form of culpability (a test which
also includes subjective factors) are almost invariably telescoped into one – that
is, treated as one test. This is done to such an extent that normally the same con-
clusion is reached in respect of both these inquiries. This means that in practice it
is unnecessary to inquire twice whether X was negligent.
Nevertheless, there are exceptional cases where somebody who has not con-
ducted himself as the reasonable person would have done, cannot personally be
blamed for his failure to measure up to the standard of the reasonable person. In
such a case negligence as a form of culpability is lacking. In a heterogeneous
society such as in South Africa, for example, it is not impossible to come across
an unusual case in which an illiterate, unsophisticated person, who has almost
never come into contact with modern civilization, picks up a dynamite cap and
hands it to his child to play with, with fatal consequences. In a case such as this,
subjective factors such as X’s lack of experience or knowledge must be taken
into account.216 In this example the law could not reasonably have expected of
him to avoid the harmful conduct. There are statements in the case law – in-
cluding that of the Appellate Division – which indicate that the courts leave a
door open for certain subjective considerations to be taken into consideration,
although these factors are not formulated in precise terms.217
________________________

216 See the facts in Ngema 1992 2 SACR 651 (D), as well as the statements of Hugo J on
656–657, and contrast the approach of the court in this case with that of the Appellate
Division in the contentious case of Mbombela 1933 AD 269.
217 In Van As 1976 2 SA 921 (A) 928D–E Rumpff CJ declared: “Hy [ie, the diligens pater-
familias] word ‘objektief’ beskou by die toepassing van die reg, maar skyn wesenlik
sowel ‘objektief’ as ‘subjektief’ beoordeel te word omdat hy ’n bepaalde groep of soort
persone verteenwoordig wat in dieselfde omstandighede verkeer as hy, met dieselfde
kennisvermoë.” In Ngema 1992 2 SACR 651 (D) 657f Hugo J stated: “One must, it
seems to me, test negligence by the touchstone of the reasonable person of the same
background and educational level, culture, sex and – dare I say it – race of the accused.”
[continued]
 CULPABILITY 209

It would therefore not be wrong to describe the test to determine negligence

as a “relative objective” or “qualified objective” test. Speaking broadly, it would
seem that if X belongs to a special category of persons, the test to determine his
negligence would be to inquire how the reasonable person belonging to that
category of persons would have acted in the circumstances. For example, if the
question is whether a police officer was negligent in shooting at a fleeing
offender during a car chase, the question is how the hypothetical reasonable
police officer (and not a reasonable person who is not a police officer) would
have acted had he found himself in the same circumstances.
7 Negligence in respect of a circumstance Negligence can be a form of
culpability in both formally and materially defined crimes. The test to determine
negligence set out above was formulated in such a way that it refers to both for-
mally and materially defined crimes. In materially defined crimes the causing
of a certain forbidden situation is made punishable. The best example of such a
crime is culpable homicide. In this crime the test for negligence is in essence the
following: would the reasonable person in the same circumstances have fore-
seen the possibility that the relevant result (ie, Y’s death) may ensue, and if he
had foreseen it, would he have taken steps to guard against the result ensuing?
In formally defined crimes, on the other hand, only a specific act or omission
is prohibited, irrespective of its consequences. Examples of formally defined
crimes in respect of which the required form of culpability is negligence,
include the negligent driving of a vehicle218 and the unlawful possession of a
firearm.219 In formally defined crimes requiring culpability in the form of
negligence, the test in essence is the following: would the reasonable person in
the same circumstances have foreseen the possibility that the relevant circum-
stance may exist, and if so, would he have taken steps to guard against such a
possibility? In the crime of unlawfully possessing a firearm, for example, the
test to determine negligence is whether a reasonable person in the same circum-
stances would have foreseen the possibility that the article he has in his posses-
sion is an arm as defined in the statute, and if he would have foreseen it,
whether he would have taken steps to prevent him possessing the article.220
In the discussion which follows negligence will, for the sake of brevity, be
discussed as far as possible within the context of the best-known of all the
crimes involving negligence, namely culpable homicide, which is a materially
defined crime (the unlawful, negligent causing of somebody else’s death).
8 The “reasonable person” concept In both the first and second leg of the
test for negligence set out above,221 the expression “reasonable person” is used.
Before discussing the contents of these two legs of the test, it is necessary first
to explain what is meant by the expression “reasonable person”.

________________________

For more statements indicative of a willingness to consider subjective factors, see Mara
1966 1 SA 82 (SR) 83G; Mpofu 1969 1 SA 334 (R) 336C; Malatje 1981 4 SA 249 (B)
252B.
218 In contravention of s 63(1) of the National Road Traffic Act 93 of 1996.
219 In contravention of s 3 of the Firearms Control Act 60 of 2000.
220 Duma 1970 1 SA 70 (N).
221 Supra par 4.
210 CRIMINAL LAW

The reasonable person is merely a fictitious person which the law invents to
personify the objective standard of reasonable conduct which the law sets in
order to determine negligence. In legal literature the reasonable person is often
described as the bonus paterfamilias or diligens paterfamilias. This expression
is derived from Roman law. Bonus paterfamilias literally means “the good
father of the family” and diligens paterfamilias “the diligent father of the
family”. (In Roman law it was the conduct of this male, married member of
society which was the measure of what the law deemed to be reasonable con-
duct.) In practice today it is merely a shorthand expression for “the reasonable
person”. (Since (a) we no longer prefer men to women as the measure of ascer-
taining what reasonable conduct is, and (b) we no longer limit the measure of
reasonable conduct to how married men would act, these ancient expressions
should be avoided. It no longer fits into modern society, and can cause unneces-
sary confusion.)
In the past the expression “reasonable man” was used in legal literature in-
stead of “reasonable person”. Since at least 1994, when South Africa obtained a
new constitution which emphasises inter alia gender equality, the term “reason-
able man” ought to be avoided because of its sexist connotation.
By “reasonable person” is meant an ordinary, normal, average person. He or
she is the person “of ordinary knowledge and intelligence”.222 He or she is
neither, on the one hand, an exceptionally cautious or talented person, nor, on
the other, an underdeveloped person, or somebody who recklessly takes chances.
The reasonable person finds himself or herself somewhere between these two
extremes. The reasonable person is therefore not somebody who runs away from
every foreseen danger; he may sometimes take a reasonable risk.223
The reasonable person concept embodies an objective criterion. Personal,
subjective characteristics such as a person’s gender, race, emotional stability or
lack thereof, degree of education, or level of superstition or lack thereof, are not
taken into account.224
However, if X ventures into a field which requires specialised knowledge or
skill, his negligence is determined with reference to the reasonable person who
does have such specialised knowledge or skill.225 The more individual circum-
stances are considered, the more subjective the test becomes. Is there a limit to
the circumstances which the court may take into account? It would appear that,
in determining negligence, our courts are prepared to take into consideration
the external factors attendant upon the act (eg the fact that X drove his car
while it was raining heavily) but not X’s personal characteristics (such as his
lack of experience, hardness of hearing or irascibility).226
________________________

222 Mbombela 1933 AD 269 273.

223 SANTAM v Nkosi 1978 2 SA 784 (A) 791H–792E.
224 Mbombela supra 272–274; Mkize 1951 3 SA 28 (A) 34A–B; Sed contra Ngema 1992 2
SACR 651 (D) 657f.
225 Mkwetshana 1965 2 SA 493 (N) 497; Shivute 1991 1 SACR 656 (Nm).
226 Thus, if X “drove recklessly” because his brakes failed unexpectedly, the question is how
the reasonable person would have acted in such a crisis (Southern 1965 1 SA 860 (N)
861). However, if the reckless driving is due to X’s sleepiness (as in Shevill 1964 4 SA
51 (RA)), the reaction of the reasonable person who becomes sleepy behind the steering
wheel is immaterial.
 CULPABILITY 211

The reasonable person is not a perfect being or a fully programmed automaton

which never errs. He remains a flesh-and-blood human being whose reactions are
subject to the limitations of human nature.227 In a crisis situation, when called
upon instantly to make an important decision, he may, like any human being,
commit an error of judgment, that is, make a decision which later transpires to
be an incorrect one.228
9 Reasonable foreseeability Under this heading the first leg (point 1) of the
definition of negligence set out above, namely the question whether the reason-
able person would have foreseen the possibility that a particular circumstance
might exist or that a particular result might ensue, is discussed. This question
must be answered affirmatively before one can assume that X was negligent. In
practice this is the most important leg or component of the test for negligence.
The courts sometimes ask whether the reasonable person would have foreseen
the possibility (of the result ensuing) and on other occasions again, whether X
ought reasonably to have foreseen the possibility. However, both expressions
mean the same: foreseeability by the reasonable person and reasonable foresee-
ability by X are viewed as the same thing.
It is the (reasonable) possibility that the result may follow which must be
foreseeable, and not the probability that it may happen.229 Again, the test is one
of reasonable possibility: far-fetched or remote possibilities are not taken into
account. Furthermore, the question is whether the reasonable person would, in
the circumstances in which X found himself, have foreseen the possibility in
question.230 Our courts do not assess negligence in vacuo (“in a vacuum”), but
in concreto, that is, in the light of the actual circumstances in which X found
himself at the time he committed his act. For example, if the question arises
whether motorist X was negligent when he ran over and killed a pedestrian in a
street during a heavy rainstorm, it must be asked what a reasonable person who
was driving in a street during a heavy downpour would have foreseen. It would
be wrong to place the reasonable person behind the steering wheel of a motor
car on an occasion when the sun was shining brightly.231 It is submitted that in
answering the question whether the result or circumstance was reasonably fore-
seeable, a court should also take into consideration the realities peculiar to South
Africa, and more specifically the fact that crime and violence is very common
in our society, and that the average South African is therefore much more afraid
of an attack upon him than, for example, the average resident in first-world
countries such as England and Germany.
________________________

227 Van As 1976 2 SA 921 (A) 928. See also Burger 1968 4 SA 877 (A) 879: “One does not
expect of a diligens paterfamilias any extremes such as Solomonic wisdom, prophetic
foresight, chameleonic caution, headlong haste, nervous timidity, or the trained reflexes
of the racing driver. In short, a diligens paterfamilias treads life’s pathway with moder-
ation and prudent common sense.” For a discussion of the characteristics of the diligens
paterfamilias with reference to previous decisions, see SANTAM v Nkosi 1978 2 SA 784
(A) 791–792; Bochris Investments (Pty) Ltd 1988 1 SA 861 (A) 865–866.
228 Minister van Vervoer v Bekker 1975 3 SA 128 (O) 132H; Samson v Winn 1977 1 SA
761 (C).
229 Herschel v Mrupe 1954 3 SA 464 (A) 471, 475–476; Russell 1967 3 SA 739 (N) 741.
230 Van As 1967 4 SA 594 (A) 600; Thenkwa 1970 3 SA 529 (A) 534G–H; Burger supra
879D; Van As 1976 2 SA 921 (A) 928E.
231 Van Schoor 1948 4 SA 349 (C) 350; Southern supra 1965 1 SA 860 (N) 861.
212 CRIMINAL LAW

Like intention, the negligence must relate to the conduct, all the definitional
elements, as well as the unlawfulness of the conduct. According to the defin-
itional elements of culpable homicide, it is Y’s death and not merely bodily
injury which must have resulted from X’s act; accordingly, to be guilty of culp-
able homicide, X must have been negligent in respect of the death. Where X
assaults Y, and Y dies as a result, X will be guilty of culpable homicide only if
the reasonable person would have foreseen that Y might die as a result of the
assault.232 Although it is well known that, because of the frailty of the human
body, death may be caused by even a mild assault, it is wrong to say that the
reasonable person will always foresee that even a mild assault, such as a slap,
may cause Y’s death. In certain exceptional cases (as the judgment of the Appel-
late Division in Van As233 proves) some unusual physiological characteristic of
the victim (such as a thin skull or a weak heart) may make it impossible to
foresee that death may result from a mild assault.
It is not necessary for the reasonable person to have foreseen the precise way
in which Y would die. It is sufficient that he would have foreseen the possibil-
ity of death in general.234
10 Reasonable person would have taken steps to avoid the result ensu-
ing Under this heading the second leg (point 2) of the definition of negligence
set out above, namely the requirement that the reasonable person would have
taken steps to guard against the possibility of the result ensuing, is discussed.
In practice this second leg of the test for negligence is seldom of importance,
because in the vast majority of cases the reasonable person who had foreseen
the possibility of the result ensuing (ie, who has complied with the first leg of
the test), would also have taken steps to guard against the result ensuing. How-
ever, there are cases in which the reasonable person who has foreseen the possi-
bility will not take steps to guard against the result ensuing. This is where the
foreseen possibility is far-fetched or remote, where the risk of the result ensuing
is very small, where the avoidance of the harm requires unpractical precautions
or where the cost and effort necessary to undertake the steps do not outweigh
the more important and urgent purpose of X’s act.235 An example of such a situ-
ation is where a fireman drives a fire-engine down a busy street, not stopping at
red traffic lights, in order to save hundreds of people who are trapped in a burn-
ing building.
It should be borne in mind that the reasonable person does not automatically
run away from every danger he foresees, but sometimes takes reasonable
risks.236 Otherwise it could be argued that driving a motor car is always a
________________________

232 Bernardus 1965 3 SA 287 (A) 296, 298; Fernandez 1966 2 SA 259 (A) 264; Ntuli 1975
1 SA 429 (A) 436; Burger 1975 4 SA 877 (A) 879; Van As 1976 2 SA 921 (A) 927–
928.
233 1976 2 SA 921 (A). See also John 1969 2 SA 560 (RA) 571H.
234 Bernardus supra 307; Motau 1968 4 SA 670 (A) 677; Van As 1976 2 SA 921 (A) 928;
It is submitted that the decision in Goosen 1989 4 SA 1013 (A) does not detract from
this principle. In this case it was held that a mistake relating to the causal chain of events
may exclude intention. For criticism of Goosen’s case, see supra V C 19(c).
235 Herschel v Mrupe 1954 3 SA 464 (A) 471; Ngubane 1985 3 SA 677 (A) 685A–B.
236 SANTAM v Nkosi 1978 2 SA 784 (A) 791H–792E.
 CULPABILITY 213

negligent act, for it is foreseeable that, no matter how careful a driver is, he
may possibly cause somebody else’s death. In order to determine whether the
reasonable person would have guarded against the result ensuing, it may there-
fore be necessary to balance the social utility of X’s conduct against the magni-
tude of the risk of the foreseeable harm.237
11 X’s conduct differed from that of the reasonable person It is not
necessary to say much about the third leg of the definition of negligence set out
above. It only incorporates the self-evident principle that X is negligent if his
conduct did not conform to that of the reasonable person by considering what
the reasonable person would have foreseen or guarded against.
12 Subjective factors As already emphasised more than once, the test in
respect of negligence is in principle objective, because the question in each case
is whether the reasonable person would have foreseen the result and guarded
against it. However, the objective character of the test is subject to the following
qualifications or exceptions:
(1) The rule set out above that the reasonable person should be placed in the
circumstances in which X found himself at the critical moment itself
amounts to a certain degree of individuation or subjectivity of the test.
(2) If the question is whether an expert in a certain field was negligent, the test
is whether a reasonable expert undertaking such an act would have fore-
seen the possibility of death.238 For example, if the question is whether a
heart surgeon was negligent in the performance of an operation during
which the patient died, the surgeon’s negligence cannot be determined by
reference to the criterion of the reasonable person, for the reasonable per-
son is for all practical purposes a layman in the medical field.
(3) The criterion for determining the negligence of children who nevertheless
have criminal capacity is the conduct of the reasonable child in the same
circumstances.239
(4) If X happens to have more knowledge of a certain matter than the reason-
able person would have, he cannot expect a court to determine his neg-
ligence by referring to the inferior knowledge of the reasonable person. X’s
superior knowledge must indeed be taken into account.240 If a blind person
________________________

237 Botes v Van Deventer 1966 3 SA 182 (A) 189–191; Mkwanazi 1967 2 SA 593 (N)
596F–H.
238 Van Schoor 1948 4 SA 349 (C) 350 (medical doctor); Hosiosky 1961 1 SA 84 (W)
(pharmacist negligent in the preparation of prescription); Van As 1976 2 SA 921 (A)
928E.
239 T 1986 2 SA 112 (O) 127C–F.
240 Van As 1967 4 SA 594 (A) 600B–C; Ngema 1992 2 SACR 651 (D) 657c–d. Cf also the
definition of the expression “ought reasonably to have known” in s 1(3) of the Preven-
tion of Organised Crime Act 121 of 1998: “. . . a reasonable . . . person having both . . .
the general knowledge, skill, training and experience that may reasonably be expected
of a person in his or her position; and . . . the general knowledge, skill, training and
experience that he or she in fact has”. Similar descriptions are also found in s 2(2) of
Prevention and Combating of Corrupt Activities Act 12 of 2004 as well as s 1(7) of the
Protection of Constitutional Democracy against Terrorist and Related Activities Act 33
of 2004.
214 CRIMINAL LAW

walking next to the road unexpectedly starts crossing it and he is run over
and killed by a motorist, it is conceivable that the motorist may not be re-
garded as negligent because the reasonable person would not have known
that the pedestrian was blind and would therefore not have foreseen his un-
expected conduct. If, however, X happened to know that the person walk-
ing along the road was a blind man who was inclined to change direction
unexpectedly, his negligence is not determined with reference to the rea-
sonable person who lacks this knowledge, but with reference to the conduct
of somebody who does have this particular knowledge.
13 Can negligence and intention overlap? Intention and negligence are two
different concepts. Negligence is not something less than intention, but something
different from it. The logical result of this should be that intention and negligence
can never overlap. However, the Appellate Division took the opposite view. In
Ngubane241 the court held that it is wrong to assume that proof of intention
excludes the possibility that X was also negligent. The result of this decision is
that if X is charged with culpable homicide and it appears from the evidence that
he in fact killed Y intentionally, he can be convicted of culpable homicide.
From a theoretical point of view the decision in Ngubane is clearly wrong. The
argument of the court is contradictory and a study in illogicality.242 However, it is
________________________

241 1985 3 SA 677 (A), discussed by Louw 1987 De Jure 173 ff. Ngubane’s case was
followed in Ramagaga 1992 1 SACR 455 (B) 465–466; Seymour 1998 1 SACR 66 (N)
72f–g; Jara 2003 2 SACR 216 (Tk).
242 The points of criticism that may be levelled against this judgment are the following:
Firstly, although, as the court correctly points out (685–686) there are cases of neg-
ligence (namely conscious negligence) in which X does foresee the possibility that the
result may follow, it is wrong to infer from this, as the court seems to do, that intention
and negligence can therefore exist simultaneously. Foreseeing the result is only one leg of
the tests in respect of conscious negligence and dolus eventualis. One should not forget
the second leg of these tests: where there is dolus eventualis X reconciles himself to the
result flowing from the act. He does not allow himself to be deterred by the prospect of
the ensuing result. He decides to proceed with his conduct, no matter what happens. In
cases of conscious negligence, on the other hand, something completely different hap-
pens. X does not reconcile himself to the result following upon the act. He decides that
the result will not ensue; he does not accept the possibility that it will ensue. One cannot
simultaneously reconcile and not reconcile oneself to the result; one cannot simultane-
ously decide that the result will ensue and that it will not.
Secondly, the court’s ultimate conclusion remains incompatible with its initial point of
departure – a point of departure which the court was at pains to emphasise – namely
that “dolus and culpa are conceptually different”, and that “(t)his difference is so funda-
mental that it may be conceded that the two concepts never overlap” (686C–D, 687E).
How one can accept that the two concepts never overlap yet nevertheless conclude that
a person who killed intentionally simultaneously also killed negligently, is anything but
clear.
Thirdly, the decision may be criticised on the ground that the court manipulated the
rules of substantive law in order to solve a typical procedural law problem. The problem
which arose in these cases is procedural in nature. X was charged with the wrong crime.
The problem could have been solved by the conversion of the trial in the Magistrate’s
Court on a charge of culpable homicide into a preparatory examination on a charge of
murder. If there were difficulties in this regard, the Criminal Procedure Act should be
amended to make it easier for a Magistrate’s Court to convert such a trial into a prepara-
tory examination. It is wrong to remedy defects in the law of procedure by distorting the
logical rules of the general principles of criminal law in order to suit the law of procedure.
 CULPABILITY 215

unlikely that the courts will depart from this decision, which serves the interests
of the practical administration of justice well.
14 Conscious and unconscious negligence Conscious negligence should be
carefully distinguished from unconscious negligence.243 In the case of uncon-
scious negligence X does not foresee the prohibited result. In the case of con-
scious negligence he does foresee it, but decides unreasonably that it will not
ensue. However, as a reasonable person he should foresee that the result may
ensue. Conscious negligence (luxuria) is still a form of negligence, not of inten-
tion. If X foresees the possibility and reconciles himself to it (thus, does not
decide that it will not ensue), there is of course dolus eventualis. The difference
between dolus eventualis and conscious negligence has already been explained
in more detail in the discussion of dolus eventualis above.244 In practice almost
all cases of negligence are cases of unconscious negligence.
15 Negligence and ignorance or incompetence If X embarked upon an
activity requiring specialised knowledge (such as spraying crops with insecti-
cide), but he lacked such knowledge, and his activities resulted in Y’s death,
then he would be negligent in respect of Y’s death, not because of his ignor-
ance, but because he decided to embark upon the activity although he lacked
the required knowledge or skill. He should not have engaged in the undertaking:
it was reasonably foreseeable that his conduct might result in somebody’s death.245
If X knew that he was likely to suffer epileptic fits, but nevertheless drove a
motor car, and then suffered a fit while driving, thereby causing an accident in
which Y died, he would be negligent in respect of Y’s death, not because he
was an epileptic, but because he decided to drive a motor car when as a reason-
able person he should have foreseen that he might suffer a fit while driving.246
16 Negligence in respect of unlawfulness Negligence, like intention, must
extend to the conduct, all the requirements for the crime contained in the defin-
itional elements, as well as to the unlawfulness of the conduct. Actual awareness
of unlawfulness is not required for negligence. It is sufficient that the reason-
able person would, in the circumstances, have foreseen the possibility that the
circumstances contained in the definitional elements might be present, or that
the prohibited result might flow from his action, and that there might be no
grounds of justification.
If X is mistaken about a material element of the crime or if he is mistaken
about the applicable law, he lacks negligence, provided the mistake is reasonable
– in other words, provided the reasonable person would also have been mistaken
________________________

243 On conscious negligence, see Ngubane 1985 3 SA 677 (A) 685; Humphreys 2013 2
SACR 1 (SCA) par 15-18, and generally the discussion, with references, supra V C 9.
244 Supra V C 9.
245 The maxim imperitia culpae adnumeratur (Inst 4 3 7 – “unskilfulness amounts to neg-
ligence”) is therefore misleading. X is not punished for his unskilfulness or ignorance,
but because he embarked upon an activity for which he was not qualified. The negligence
relates to his unreasonable undertaking of the work of an expert or specialist. See Du
Toit 1947 3 SA 141 (A) 145–146; Ngema 1992 2 SACR 651 (D) 657a–b.
246 Victor 1943 TPD 77 82. Cf also Trickett 1973 3 SA 526 (T) 532 (driving while sleepy);
Roopsingh 1956 4 SA 509 (A) 518 (driving while under the influence of liquor); Van
Rensburg 1987 3 SA 35 (T) 39C–D.
216 CRIMINAL LAW

on that particular point.247 If X does not know what the law applicable to a cer-
tain undertaking is, it is reasonable to obtain a legal opinion from a legal prac-
titioner and to rely on such opinion, provided, first, the opinion relates to the
specific act he is about to perform (and not merely generally to a series of analo-
gous activities), and secondly, the opinion is not so obviously far-fetched that any
reasonable person in similar circumstances would appreciate that it is wrong.248
Equally, if a person undertakes a specialised activity he must make sure that
he is aware of the legal provisions applicable to that specialised venture. If, for
example, he opens a butchery, he must ascertain the particular health regu-
lations appertaining to that trade. Failure to do so is a ground for a finding of
negligence.249
17 Attempt and complicity A person can neither intend to commit a crime
involving negligence nor be an accomplice to such a crime. Attempt presup-
poses intention or the directing of the will, and nobody can “intend to be neg-
ligent”. There is therefore no such thing as attempted culpable homicide.250
An accomplice’s liability is based inter alia on his intentional furtherance of
the crime (committed by somebody else).251 One cannot “intentionally further”
a crime such as culpable homicide, which requires negligence: the intentional
furtherance of death amounts to murder. However, this does not mean that a
number of persons who all cause death negligently cannot all be liable for culp-
able homicide as perpetrators.

E EFFECT OF INTOXICATION
1 Introduction It is well known that the consumption of alcohol may detri-
mentally affect a person’s capacity to control his muscular movements, to
appreciate the nature and consequences of his conduct, as well as its wrongful-
ness, to conduct himself in accordance with his appreciation of the wrongful-
ness of the conduct, or to resist the temptation to do wrong. It may induce
conditions such as impulsiveness, diminished self-criticism, over-estimation of
one’s own abilities and underestimation of dangers. It may also result in a per-
son’s being unaware of circumstances or consequences of which he would have
been aware had he been sober. What is the effect, if any, of intoxication on
criminal liability?
Intoxication may play a role in various elements of a crime, namely the act,
criminal capacity and culpability – and, more particularly, intention. Since the
Appellate Division’s decision in 1981 in Chretien252 it has been clear that,
________________________

247 De Blom 1977 3 SA 513 (A) 532G; Du Toit 1981 2 SA 33 (C) 39C; Khotle 1981 3 SA
937 (C) 939.
248 Longdistance (Pty) Ltd 1986 3 SA 437 (N); Waglines (Pty) Ltd 1986 4 SA 1135 (N);
Longdistance (Natal) (Pty) Ltd 1990 2 SA 277 (N); Claassens 1992 2 SACR 434 (T)
440.
249 De Blom supra 532; Dalindyebo 1980 3 SA 1049 (Tk) 1054–1055; Sayed 1981 1 SA
982 (C) 990A–B; Khotle supra 938E–G; Evans 1982 4 SA 346 (C) 350B–C.
250 Kadongoro 1980 2 SA 581 (R); Ntanzi 1981 4 SA 477 (N) 480–482.
251 Infra VIII B 12.
252 1981 1 SA 1097 (A).
 CULPABILITY 217

depending upon the circumstances, the effect of intoxication presently in our

law may be as follows:
(1) that X did not act in the legal sense of the word;
(2) assuming that he did commit an act, that he lacked criminal capacity;
(3) assuming that he acted with criminal capacity, that the intoxication exclud-
ed the intention required for a particular crime; and
(4) assuming that intoxication had no effect on X’s liability for the crime, that
it may serve as a ground for the mitigation of punishment.
What is said here about intoxication resulting from the consumption of alcohol
or liquor applies equally to intoxication resulting from the use of drugs.
2 Arrangement of discussion In broad outline, the discussion of the effect
of intoxication which follows can be subdivided as depicted in the following
diagram.

Intoxication

Involuntary Voluntary

Remaining instances of
Actio libera Intoxication leading
voluntary intoxication
in causa to mental illness
(summarised infra par 16)

3 Involuntary intoxication It is necessary first to distinguish between volun-

tary and involuntary intoxication. By “involuntary intoxication” is meant intoxi-
cation brought about without X’s conscious and free intervention. For example,
Y, who wants to play a trick on X, secretly puts a sedative into his coffee or
forces X to swallow liquor, as a result of which he becomes intoxicated. In-
voluntary intoxication may also include the situation where Y forces X to swal-
low something against his will, as a result of which X becomes intoxicated.
Involuntary intoxication is a complete defence on a charge of a crime commit-
ted during the intoxication. The reason for this is that X could not have pre-
vented it, and therefore cannot be blamed for it.253
4 Actio libera in causa As far as voluntary intoxication is concerned, three
different situations have to be clearly distinguished, namely the actio libera in
causa, intoxication resulting in mental illness and the remaining instances of
voluntary intoxication.
Firstly, the actio libera in causa is discussed. This is the situation where X
intends to commit a crime but does not have the courage to do so and takes to
drink in order to gain the necessary courage, knowing that he will be able to
________________________

253 Voet 47 10 1; Moorman Inl 2 25, 26; Johnson 1969 1 SA 201 (A) 205, 211; Els 1972 4
SA 696 (T) 702; Hartyani 1980 3 SA 613 (T).
218 CRIMINAL LAW

perpetrate the crime once he is intoxicated. In this instance intoxication is no

defence whatsoever. It is not even a ground for mitigation of punishment; in
fact it would be a ground for imposing a heavier sentence than the normal. X
forms the intention to commit the crime when he is still sober, and he uses his
inebriated body as an instrument for the purpose of committing the crime. This
factual situation, which is difficult to prove, is known as actio libera in causa.254
5 Intoxication leading to mental illness Certain forms of mental illness,
such as delirium tremens, may be the result of chronic consumption of alcohol.
Here the ordinary rules relating to mental illness set out above255 apply: X is
found not guilty because of mental illness, but the court issues the order which
it must make if it had found that at the time of the act X suffered from a mental
illness. One of the possible orders which the court may make is that X be
detained and treated in a psychiatric hospital.256
6 Remaining cases of voluntary intoxication – general The two cases of
voluntary intoxication discussed briefly above as well as the cases of involun-
tary intoxication are seldom encountered in practice, and the rules applicable to
them, as set out above, are generally undisputed. Practically all the cases in
which intoxication comes into the picture in the daily practice of our courts fall
in the next category to be discussed, namely voluntary intoxication not giving
rise to mental illness and where X did not partake of alcohol with the exclusive
purpose of gaining courage to commit a crime. The controversy surrounding
the role of intoxication in criminal law relates primarily to these cases. Unless
________________________

254 On the actio libera in causa see Ndhlovu (2) 1965 4 SA 692 (A) 695; Johnson supra
211; Baartman 1983 4 SA 393 (NC); Rabie 1978 THRHR 60; Snyman 1978 De Jure
227; Bergenthuin 1986 SACC 21. There is, as far as could be ascertained, no reported
decision as yet in which X has been convicted on an application of the actio libera in
causa. This may be because of the difficulty of proving such a situation in court. Per-
haps the nearest a court has ever come to a direct encounter with this concept, is in
Baartman supra. In this case X had declared in front of witnesses that the next day he
would drink until he was drunk and that he would then stab and kill Y. The next day he
did indeed have a great deal to drink and then stabbed Y. However, the court found that
on the day when he stabbed Y, X acted with criminal capacity (400H), knew that his act
was wrong (398H), and killed Y intentionally (401C). X was convicted of murder. As
the court itself admitted (400H), the conviction for murder was not based on an appli-
cation of the actio libera in causa. The court nevertheless proceeded obiter to make cer-
tain observations about the actio libera in causa which are completely erroneous. It
stated that in the light of the decision in Chretien it would be wrong to convict some-
body who had committed a crime at a stage when he lacked criminal capacity, even
though he had previously, while still sober, decided to commit such a crime. This state-
ment is wrong. The court erred, first, in disregarding Rumpff CJ’s explicit statement in
Chretien 1981 1 SA 1097 (A) 1105G–H that he was not dealing with the case of an ac-
cused who had drunk in order to commit a crime. Secondly, and more importantly, the
court disregarded the important principle that in an actio libera in causa situation X,
when he executes his previously formed intention, lacks criminal capacity, and that his
liability is based on the principle of antecedent liability: whilst endowed with full crim-
inal capacity, X sets in motion a causal chain of events which result in Y’s death. The
court’s remarks on actio libera in causa have quite correctly been criticised by various
writers. See Snyman 1984 SACC 227; Geldenhuys 1984 De Jure 398.
255 Supra V B (iii).
256 Bourke 1916 TPD 303 307; Holliday 1924 AD 250 257–258; Kaukakani 1947 2 SA
807 (A) 813.
 CULPABILITY 219

otherwise indicated, all references to intoxication below are references to intoxi-

cation falling within this category. It is these cases that come before our courts
daily in such large numbers. For example, X has a couple of drinks at a social
gathering and then behaves differently from the way he would if he had not
taken any liquor: he too readily takes exception to a remark made by Y and
then assaults him, or grabs a knife and stabs him, or damages property.
7 The “unyielding” and the “lenient” approaches to intoxication Over the
years there have been two opposing schools of thought regarding the effect that
intoxication ought to have on criminal liability.
(1) Unyielding approach On the one hand, there is the approach that may be
described as the unyielding one, which holds that the community will not
accept a situation in which a person who was sober when he committed a
criminal act is punished for that act, whereas the same criminal act commit-
ted by someone who was drunk is excused merely because he was drunk
when he committed the act. This would mean that intoxicated people are
treated more leniently than sober people.
(2) Lenient approach On the other hand, there is the lenient approach which
holds that if one applies the ordinary principles of liability to the conduct
of an intoxicated person there may be situations in which such a person
should escape criminal liability on the basis that because of his intoxi-
cation he either did not perform a voluntary act, or lacked either criminal
capacity or the intention required for a conviction.
In the course of our legal history the approach towards the effect of intoxication
has vacillated. One can distinguish four different periods:
(1) Initially, in our common law, the rule was that voluntary intoxication could
never be a defence to a criminal charge, but, as a type of concession to
human weakness, could at most amount to a ground for the mitigation of
punishment.
(2) Throughout the twentieth century until 1981 the courts applied a set of
rules that enabled them to reach a conclusion somewhere in the middle be-
tween the lenient and the unyielding approaches mentioned above. This
middle course was achieved by applying what was known as the “specific
intent theory”: intoxication could exclude a specific intent which enabled a
court to convict an accused of some less serious crime than the one with
which he had been charged.
(3) However, with the appellate decision in 1981 in Chretien the pendulum
clearly swung in the direction of the lenient approach. According to this
judgment intoxication could result in a complete acquittal.
(4) The swing towards the lenient approach in Chretien created the fear that
intoxicated persons might too easily escape conviction, which in turn led
to legislation in 1988 aimed at curbing the lenient approach. This reflects
the law as it is at present. As will become clear in the discussion which
follows, the pendulum once more occupies a somewhat uneasy position
halfway between the lenient and the unyielding approaches.
8 The judgment in Chretien
(a) Background The leading case on the effect of voluntary intoxication
on criminal liability is the decision of the Appellate Division in 1981 in
220 CRIMINAL LAW

Chretien.257 Before 1981 the courts applied the so-called “specific intent
theory”, which briefly amounted to the following: Crimes could be divided into
two groups: those requiring a “specific intent” and those requiring only an
“ordinary intent”. Examples of the first-mentioned group were murder and
assault with intent to do grievous bodily harm. If X was charged with a crime
requiring a “specific intent”, the intoxication could have the effect of excluding
the “specific intent”. He could then not be convicted of the “specific intent”
crime with which he was charged, but of a less serious crime only, including
one in respect of which only an “ordinary intent” was required.
(b) The facts in Chretien In Chretien258 X attended a party at which he and
other persons present consumed a large quantity of liquor. Late that night he
got into his motor car and drove off. Other people who had also attended the
party were standing in his way in the street. X drove in amongst them. One per-
son was killed and five injured. X was charged with murder in respect of the one
who was killed and with attempted murder in respect of the five injured persons.
The court found that because of his consumption of alcohol, X had expected
that the people in the street would see his motor car approaching and would
move out of the way, and that therefore he had no intention of driving into
them. On the charge of murder he was convicted of culpable homicide. He could
not be found guilty on any of the charges of attempted murder because of the
finding that he lacked the intention to kill. The question arose, however, whether
he should be found guilty of at least common assault on these five charges of
attempted murder. The Appellate Division held that, since in his drunken state
he was under the impression that the people in the street would move out of his
way, he had not had the intention to commit assault, and that he could therefore
not be convicted of assault.
(c) The principles laid down in Chretien The legal points decided by the
Appellate Division (per Rumpff CJ) in this unanimous decision can be summar-
ised as follows:
(1) If a person is so drunk that his muscular movements are involuntary, there
can be no question of any act on his part, and although the condition in
which he finds himself can be attributed to intoxication, he cannot, on the
strength of the muscular movements, be found guilty of any crime.259
(2) In exceptional cases a person may, because of the excessive consumption
of liquor, completely lack criminal capacity and as a result not be criminally
liable at all. This will be the case if he is so intoxicated that he is no longer
aware that what he is doing is wrong, or that his inhibitions have substan-
tially disintegrated.260
(3) The “specific intent theory” in connection with intoxication is unacceptable
and must be rejected.261 Accordingly intoxication may exclude even an
“ordinary intent”. It is precisely as a result of the rejection of this theory
that X’s intoxication in this case was held to be a complete defence even to
common assault.
________________________

257 1981 1 SA 1097 (A).

258 1981 1 SA 1097 (A).
259 See 1104E and 1106E–F.
260 At 1106B–C, 1105F–G.
261 At 1103H–1104A.
 CULPABILITY 221

(4) The chief justice went out of his way to emphasise that a court should not
lightly infer that because of intoxication X had acted involuntarily or was
not criminally responsible or that the required intention was lacking, for
this would discredit the administration of justice.262
(d) Effect of the decision in Chretien Chretien did not change the rules set
out above263 relating to involuntary intoxication, actio libera in causa and
intoxication leading to mental illness. Before the decision in Chretien, it was
uncertain whether crimes such as theft, rape, housebreaking, malicious injury to
property and crimen iniuria were crimes requiring a “specific intent”, and there-
fore whether intoxication could operate as a complete defence on charges of
committing these crimes. Because of the rejection of the “specific intent theory”,
this uncertainty has now disappeared. It may now be accepted that intoxication
can be a complete defence not only on a charge of ordinary (“common”) assault,
but on a charge of any crime requiring intention, such as theft, rape, housebreak-
ing, malicious injury to property, crimen iniuria and fraud. Since the decision
in Chretien it no longer matters whether X’s intoxication was due to voluntary
or involuntary consumption of alcohol: in both instances the intoxication may
result in a complete acquittal.
To summarise, immediately after the decision in Chretien, intoxication could
have one of the following four effects (the effect of the legislation which fol-
lowed this judgment, and which will be set out below, is, for the moment,
disregarded):

(1) In extreme cases it might result in X not performing an act in the legal
sense of the word (in other words a voluntary act). He is then not
guilty of any crime.
(2) If, despite the intoxication, X could nevertheless perform a voluntary
act, the intoxication might result in X lacking criminal capacity. He is
then similarly found not guilty.
(3) If, despite the intoxication, X could nevertheless perform a voluntary
act and also had criminal capacity, the intoxication might result in his
lacking the intention required for the crime with which he is charged.
In such a case he would not necessarily always escape conviction: the
evidence might reveal that he was negligent, in which case he might
be convicted of a less serious crime requiring culpability in the form
of negligence.
(4) If the intoxication did not have any of the above three effects, X must
be convicted, but the extent of his intoxication may serve as a ground
for the mitigation of punishment.

(e) Criticism of the judgment in Chretien The judgment in Chretien was, with
respect, completely wrong. The view that voluntary intoxication may lead to a
complete acquittal is clearly contrary to first, the rules followed for more than
two thousand years in our common law, secondly, the rules which have always
________________________

262 At 1105H, 1106D.

263 Supra pars 3, 4 and 5.
222 CRIMINAL LAW

been followed in other jurisdictions, especially those in the Anglo-American legal

systems,264 and thirdly, and most important of all, sound legal policy.
The court held that the legal convictions of society did not demand that one
should depart from the purely legal scientific approach. It also relied on the
astonishing assumption that public policy, which demanded that intoxication
should not be a complete defence, should yield to legal theory (the so-called
“scientific approach”); the court accordingly astonishingly held that intoxication
should indeed, in extreme cases, be recognised as a complete defence.265 This
opinion of the court was clearly wide of the mark. Exactly the opposite is the
case: the legal convictions of society demand that drunken people should not,
because of their intoxication, be treated more leniently than sober people and
that intoxication should not be recognised as a complete defence.266
The statement of Rumpf CJ that a court should not lightly come to the con-
clusion that intoxication leads to a complete acquittal, is meaningless. Such a
rule would make sense only if there were other rules of criminal law which
were of such a nature that a court could indeed “lightly” conclude that there had
been compliance or non-compliance with such a rule. However, the truth is that
no court can simply “lightly”, that is, without very careful consideration of the
facts, come to such a conclusion. A court must treat all considerations relating
to X’s liability seriously. The Appeal Court added this caveat simply to soothe
its own conscience.
9 Intoxication and crimes of negligence As explained above, in our prac-
tice the test to determine negligence is in principle objective. The question is
what the reasonable person would have done in the circumstances. Although
the reasonable person is not a teetotaller, one can assume that he knows when
to stop drinking and that he is not given to over-indulgence. Thus if X is
charged with a crime requiring not intention, but negligence, such as culpable
homicide or negligent driving, the mere fact that he was intoxicated at the time
of the commission of the act can serve as a ground for a finding of negligence.
Intoxication here, rather than being a ground for the exclusion of culpability
(negligence), will serve to confirm its presence.
If X is charged with murder and the evidence reveals that at the time of the
commission of the act he was under the influence of liquor, it is a well-
established principle that the court may find that because of his intoxication he
lacked the intention to kill; the court can then convict him of culpable homicide
if the evidence shows that he was negligent in acting while under the influence

________________________

264 In the countries within this legal family voluntary intoxication is not regarded as a com-
plete defence. See Smith and Hogan 239 ff; Allen 147; Dressler ch 24.
265 1105F–G.
266 In so far as empirical proof for such an obvious fact should still be required, one may
refer to a finding of a research undertaken by what was then known as the Human Sci-
ences Research Council only four years before the Appeal Court delivered its judgment.
The survey found that an overwhelming 89% of people questioned were of opinion that
the courts should under no circumstances regard voluntary intoxication as a defence.
See Van der Bergh Multipurpose Survey amongst Whites 1975: Views on drugs Legisla-
tion and on the excessive use of alcohol and criminal responsibility. Research Finding
S-B 94/1977.
 CULPABILITY 223

of liquor and that his act was the cause of Y’s death. Murder can thus be “re-
duced” to culpable homicide merely by an application of the general principles
of liability.
10 Test to determine intoxication The test which determines whether inten-
tion has been excluded by intoxication is subjective.267 The court must ask itself
whether, in the light of all the circumstances, including the degree of intoxi-
cation and of possible provocation, X had the intention, for example, to commit
murder or assault.268 A court may also draw certain conclusions about X’s state
of mind or intention from his conduct during the events in question, but it must
be remembered that a court ought not to ascribe the same comprehension and
judgment to a drunken person as it does to a normal sober person.
The mere fact that the drunken person does not remember afterwards what he
did or intended to do does not necessarily mean that he lacked criminal capacity
when he committed the wrongful act. His conduct at the time of the act may
lead to the inference that at that time he knew very well what he was doing.269
It does not automatically follow that, because X had something to drink before
the commission of the act, he is entitled to rely on intoxication as a defence.
The intoxication can operate in his favour only if it is clear to the court that the
liquor had a certain effect on his mental abilities or his conception of the ma-
terial circumstances surrounding his act.270
11 Mistake due to intoxication In crimes requiring intention, a mistake by
X regarding the material circumstances or facts of the case may exclude his
intention. The mistake may be induced by intoxication, as where X, after having
had a couple of drinks in the bar, mistakenly takes Y’s umbrella from a stand,
believing it to be his own. In such a case, according to the general principles of
criminal law, X may rely on his mistake as a ground excluding intention.
12 Effect of intoxication on measure of punishment If the intoxication does
not affect X’s liability it may serve as ground for the mitigation of punishment.271
Intoxication may, however, also serve as a ground for increasing sentence, as,
for example, in the actio libera in causa,272 in cases of culpable homicide result-
ing from driving under the influence of liquor,273 in crimes of which intoxication
is an element, such as driving under the influence of liquor,274 and where X
knows that drinking makes him aggressive, but nevertheless drinks and then,
when intoxicated, commits a crime of violence.275 Section 2 of the Criminal Law
Amendment Act 1 of 1988 specifically confers on a court the power to regard
intoxication as a ground for increasing the sentence.
________________________

267 Tsotsotso 1976 1 SA 364 (O) 365; V 1979 2 SA 656 (A) 665.
268 V supra 664–665; Lombard 1981 3 SA 198 (A); Van Vuuren 1983 1 SA 12 (A) 20.
269 Chretien 1981 1 SA 1097 (A) 1104H, 1108C–D; Adams 1986 4 SA 882 (A) 902H–I.
270 Saaiman 1967 4 SA 440 (A); Lombard 1981 3 SA 198 (A).
271 Johnson 1969 1 SA 201 (A) 205, 210–211; Mula 1975 3 SA 208 (A); Hlongwana 1975
4 SA 567 (A); V 1979 2 SA 656 (A) 670.
272 Ndhlovu (2) 1965 4 SA 692 (A) 695.
273 Kelder 1967 2 SA 644 (T) 647C–D.
274 Kelder supra 647.
275 Ndhlovu 1972 3 SA 42 (N).
224 CRIMINAL LAW

13 The crime of “statutory intoxication” The practical result of the judg-

ment in Chretien, namely that intoxication could in certain circumstances be a
complete defence, has been criticised in various quarters, one of the arguments
being that society would never accept a situation where a sober person is
punished for criminal conduct, whereas the same conduct committed by a
drunken person is pardoned merely because he was drunk. It would mean that
drunken people are treated more leniently than sober people. It was argued that
the legislature ought to enact a provision to the effect that a person commits a
crime if he voluntarily becomes intoxicated and while intoxicated commits an
act which would have been a crime but for the rules relating to intoxication laid
down in Chretien.276 In section 1 of the Criminal Law Amendment Act 1 of
1988 the legislature created such a crime.

Section 1 of the Criminal Law Amendment Act 1 of 1988 reads as follows:

1. (1) Any person who consumes or uses any substance which impairs his or her
faculties to appreciate the wrongfulness of his or her acts or to act in accordance
with that appreciation, while knowing that such substance has that effect, and who
while such faculties are thus impaired commits any act prohibited by law under any
penalty, but is not criminally liable because his or her faculties were impaired as
aforesaid, shall be guilty of an offence and shall be liable on conviction to the pen-
alty which may be imposed in respect of the commission of that act.
(2) If in any prosecution for any offence it is found that the accused is not crimi-
nally liable for the offence charged on account of the fact that his faculties referred
to in subsection (1) were impaired by the consumption or use of any substance,
such accused may be found guilty of a contravention of subsection (1), if the evi-
dence proves the commission of such contravention.”

14 Desirability of statutory crime It was necessary to create a crime such as

this one. Somebody who voluntarily loosens his car’s brake cable has no ground
for complaining if as a result the car is involved in a collision; and the shipmaster
who lifts the ship’s anchor cannot later complain if a storm arises and the wind
blows the boat onto the rocks. The same principle dictates that somebody who
voluntarily starts to drink ought not to have a ground for complaining if in his
intoxicated state he commits a wrongful act for which the law calls him to
account. A normal person has a power of resistance which, consciously or un-
consciously, he is able to exercise in order to overcome the temptation to trans-
gress the norms of society. This power of resistance is the braking power or
anchor which is an indispensable component of the cement which binds society
and enables it to function in what is deemed to be a normal way. To over-indulge
in alcohol is tantamount to openly destroying or endangering this power of
resistance, and only somebody who is a total stranger to our society can claim
that he does not know this. The retributive and deterrent theories of punishment
also demand that the intoxicated perpetrator should not be allowed to hide
behind his intoxication in order to escape punishment.277
________________________

276 For examples of similar statutory crimes in other legal systems, see s 323(a)(i) of the
German, s 287 of the Austrian and s 263 of the Swiss Penal Codes.
277 The Afrikaans version of this paragraph was quoted with apparent approval in Maki 1994
2 SACR 414 (E) 418–419. See also the remarks in Pietersen 1994 2 SACR 434 (C)
439c, in which the court rejected the idea that the section is repulsive.
 CULPABILITY 225

There is, however, much to be said in favour of the view that it would have
been better had the legislature limited this crime to instances in which the wrong-
ful act committed while intoxicated involved violence to a person or to property.
The present crime is, however, so widely worded that it may involve instances in
which the “crime” committed while intoxicated involved no violence but only
dishonesty or an infringement of another’s right of possession, such as theft.
Such cases are rare. The protection society needs is not so much against people
who become intoxicated and then commit crimes of dishonesty such as theft,
but against persons who while intoxicated commit violence, such as murder,
assault, rape, robbery or injury to property.
15 Discussion of statutory crime278
(a) Requirements in section The requirements for a conviction of contraven-
ing the section can be divided into two groups.
The first group refers to the circumstances surrounding the consumption of
the liquor, which is the event which takes place first. This group of require-
ments comprises the following:

(A1) the consumption or use by X of

(A2) “any substance” which
(A3) impairs his faculties (as described in the section)
(A4) while knowing that such substance has that effect.

The second group of requirements refers to the circumstances surrounding the

commission of the act “prohibited . . . under any penalty”, which is the event
which takes place secondly. This group of requirements comprises the following:

(B1) the commission by X of an act prohibited under penalty

(B2) while his “faculties are thus impaired” and
(B3) who is not criminally liable because his “faculties were impaired as
aforesaid”.279

(b) Separate crime If these requirements have been complied with, the sec-
tion has been contravened, and X is then convicted of this crime. This crime (ie,
the contravention of the section) constitutes a separate, substantive crime. If the
requirements of the section have been complied with, X is not convicted of the
“main crime” which his conduct would seem to indicate or point at (such as
assault or injury to property); in fact, if he has been charged with such a “main
________________________

278 For a discussion of this crime see generally Milton and Cowling F8; Burchell and
Militon 408 ff; Hiemstrar-Kruger 695 ff; Burchell 1988 SACJ 274; Paizes 1988 SALJ
776 (a particularly illuminating discussion); Snyman 1990 TSAR 504; Van der Merwe
1990 Stell LR 94; Welch 1990 SACJ 268; Coetzee 1990 SACJ 285. The courts have also
expressed opinions on aspects of the crime. See Lange 1989 1 SACR 199 (W);
Hutchinson 1990 1 SACR 149 (C); Pienaar 1990 2 SACR 18 (T); Mbele 1991 1 SA
307 (T); D 1995 2 SACR 502 (C).
279 In D 1995 2 SACR 502 (C) 513 this division of the requirements for the crime was
substantially followed.
226 CRIMINAL LAW

crime” he must be found not guilty of having committed that crime. The crime
which he has committed is not the assault or injury to property, but the crime of
“contravening section 1(1) of Act 1 of 1988”.
(c) Voluntary consumption of substance The wording of the section is not
clear in all respects. One of the first questions to arise is, whether the section
applies if X consumed the substance involuntarily. The section does not expressly
limit the commission of the crime to cases where X voluntarily consumed the
substance. Despite the fact that the word “voluntarily” is omitted before the
words “consumes or uses”, it is submitted that, considering the background and
aim of the enactment as well as the unacceptable consequences which will
follow from a counter-interpretation, the section should be limited to cases in
which X has voluntarily consumed the liquor or “substance”.280
(d) Intoxication excluding capacity The next question, a very important one,
is whether X may be convicted under the section only if his intoxication results
in his lacking criminal capacity, or whether he may also be convicted if it re-
sults in absence of intention or in his being unable to perform a voluntary act.
The section speaks only of impairment of X’s “faculties to appreciate the wrong-
fulness of his acts or to act in accordance with that appreciation”. The words
quoted undoubtedly mean that X lacks capacity. In Chretien’s case281 the Appel-
late Division held that intoxication may be a complete defence on three pos-
sible grounds: first, if it results in X’s being unable to perform a voluntary act;
secondly, if it results in lack of capacity; and thirdly, if it excludes the intention
that may be required for a conviction.282 Whereas the section undoubtedly
refers to the second of the three possibilities, it is silent on whether the first and
third possible effects of intoxication are also covered.
(e) Intoxication excluding intention It is submitted that cases where intoxi-
cation results in lack of intention are not covered by the section. If the legis-
lature had wanted to include such cases, it could easily have mentioned them
specifically.
The conclusion that the legislature did not have in mind cases where the in-
toxication excluded X’s intention (which includes X’s knowledge of unlawful-
ness) is strengthened by the repeated use of the word “faculties” in both sub-
sections (1) and (2), and especially in the phrase “but is not criminally liable
because his faculties were impaired as aforesaid” (italics supplied). The ques-
tion whether X had intention and knowledge of unlawfulness is not related to
his “faculties”, but to his knowledge. If the legislature had intended to include in
the ambit of the section cases where the intoxication excluded X’s intention, it
would have used the word “knowledge” or words or expressions with a substan-
tially similar meaning (such as “know” or “being aware of”) instead of (or in
addition to) the word “faculties”.
The absence of a reference to intention in the formulation of the section means
that the ordinary principles relating to the effect of mistake on liability remain
intact: if, for example, X hangs his coat on a row of pegs on the wall when
entering a bar and later, after enjoying a number of drinks, takes somebody
________________________

280 Mbele supra 310E–F: “Die voorskrif tref ’n persoon wat . . . vrywillig iets aanwend . . .”
(italics supplied).
281 1981 1 SA 1097 (A) 1104–1106.
282 See 1104–1106.
 CULPABILITY 227

else’s coat which has the same colour as his own from the row of pegs because
in his intoxicated condition he believes the coat to be his own, he would be
found not guilty of theft as well as not guilty of contravening this section.
Absence of knowledge of unlawfulness therefore remains a defence, even if
such absence of knowledge is the result of intoxication.
( f ) Intoxication excluding a voluntary act What about the case where the
intoxication results in X’s being unable to perform a voluntary act? X would
then not be able to perform an “act” in the legal sense of the word; the move-
ments of his body would then take place while he is in a state of automatism.
It may be argued that in referring only to situations which in fact amount to
loss of capacity, the legislature intended to exclude situations in which X
lacked the required intention as well as situations in which he lacked the ability
to perform a voluntary act. The result of such an interpretation would, however,
be extraordinary: intoxication resulting in automatism is surely a more intense
form of intoxication than that resulting in lack of criminal capacity; if, there-
fore, the legislature intended to cover the latter situation, it is inconceivable that
it could have intended to exclude the former, more serious, form of intoxica-
tion. Apart from this, a person who acts involuntarily a fortiori also lacks
capacity,283 and, as indicated above, if he lacks capacity the section does apply.
For these reasons, it is submitted that X can be convicted under the section if
he were so intoxicated that quite apart from lacking capacity he was not even
able to perform a voluntary act.284
(g) Intent requirement in section The words “while knowing that such sub-
stance has that effect” in the section make it clear that culpability in the form of
intention is required for a conviction. According to general principles, proof of
intention in the form of dolus eventualis ought to be sufficient for a conviction.
It need not be proved that X knew that after the consumption of the alcohol he
would commit the particular unlawful act which he in fact committed. Such an
interpretation would place too difficult a burden upon the prosecution. All that
is required is proof that X knew or foresaw that the liquor (or substance) would
affect his ability to appreciate the unlawfulness of any act (or to conduct him-
self in accordance with such an appreciation).285
(h) Burden of proof upon the state According to general principles the bur-
den of proving the presence of all the elements of the crime beyond reasonable
doubt rests upon the state. One of the elements which the state must prove is
that X is not criminally liable for his act (committed while intoxicated) “be-
cause his faculties were impaired” (in other words because he lacked capacity
at the time he committed the act). This leads to the unusual situation that, in
order to secure a conviction of contravening this section, the state must do that
which X normally does at a trial, namely try and persuade the court to find that
X is not guilty of a crime. The state thus bears the burden of proving the oppos-
ite of what it normally has to prove.286
________________________

283 Ingram 1999 2 SACR 127 (W) 131a–b.

284 This is also the conclusion reached by Burchell 1988 SACJ 274 277; Burchell and
Milton 410; Paizes 1988 SALJ 776 785; Strauss 353.
285 Lange 1989 1 SACR 199 (W) 205a–c; Ingram 1999 2 SACR 127 (W) 134.
286 Cf the apt remarks of Paizes 1988 SALJ 776 781 in this respect.
228 CRIMINAL LAW

More particularly, the state must prove that at the time he committed the act,
X lacked capacity. The state must prove this beyond reasonable doubt. If, after
the evidence has been led, there is merely uncertainty as to whether X lacked
capacity at the time of the act, the state has not discharged its burden of proof
and X cannot be convicted of contravening the section.287 If X is charged with a
well-known crime such as assault, the evidence reveals that he had consumed a
great deal of liquor and the court at the conclusion of all the evidence decides
that he cannot be convicted of this crime because of doubt as to whether at the
time of the act he had capacity, it does not automatically follow that X can be
convicted of contravening this section; mere doubt as to whether X had capacity
cannot be equated with proof beyond reasonable doubt that he in fact lacked
capacity.288
It is here that problems arise in the practical application of the section. It is
difficult for the state to prove beyond reasonable doubt that, because of incapacity
resulting from intoxication, X cannot be held criminally liable for his act. The
courts have warned on various occasions that a court should not easily conclude
that at the time of the act X lacked criminal capacity.289 In V 290 the court spe-
cifically held that it is wrong to assume that a court could in only highly excep-
tional circumstances hold that X lacked capacity because of intoxication. In this
case it was also held that there is no logical reason why the normal standard of
proof in criminal cases was not also applicable to proof of incapacity for the
purposes of this statutory crime.
The following unusual situation may arise: if X is charged with assault and
the evidence shows that he was only slightly drunk at the time of the act, he
will not escape the clutches of the criminal law, because he will then be con-
victed of assault and the only role the intoxication will play will be to serve as a
ground for the mitigation of punishment. If the evidence shows that at the time
of the act he was very drunk – that is, so drunk that he lacked capacity, he
would likewise not escape the clutches of criminal law, because he would then
be convicted of contravening this section. However, if the evidence reveals that
at the time of the act he happened to fall into the grey area between “slightly
drunk” and “very drunk”, he will completely escape the clutches of criminal
law; he will then “fall” between the proverbial “two chairs” and it would then
be impossible to convict him of any crime. In this way the section could un-
doubtedly lose much of its effectiveness.291
________________________

287 Mbele 1991 1 SA 307 (T) 311; Griessel 1993 1 SACR 178 (O) 180g–j.
288 Mbele supra 311.
289 See the remarks in Chretien supra 1106C–D, which have been quoted with apparent
approval in Adams 1986 4 SA 882 (A) 901I–J; Mphungathe 1989 4 SA 139 (O) 144E–
145B; Kensley 1995 1 SACR 646 (A) 658i–j; September 1996 1 SACR 325 (A) 332;
Van Zyl 1996 2 SACR 22 (A) 27c–e.
290 1996 2 SACR 290 (C) 295–296.
291 Paizes 1988 SALJ 177 781; Hutchinson supra 155H–I; September 1996 1 SACR 325 (A)
327–328. This unsatisfactory aspect of the section is the result of an unfortunate choice
of words in its formulation. One way of overcoming this problem is the following: the
words “but is not criminally liable because his faculties were impaired as aforesaid” in
the present formulation ought to be replaced by an expression which facilitates the state’s
burden of proof. An expression such as the following could be used as a substitution for
the above expression: “but who is not convicted of the offence because of reasonable
doubt whether he had criminal capacity at the time of the commission of the act”.
 CULPABILITY 229

Whether this will in fact happen, will depend upon the degree of proof the
courts require for a finding of incapacity at the time of the act. If they require a
high degree of proof (in other words if they are of the opinion that it takes
much to convince them that X lacked capacity) the operation of the section can
be relatively easily evaded. It is submitted that it is unlikely that the legislature
could have intended that the section be circumvented so easily, and for this
reason the courts ought, in my opinion, not to require an unrealistically high
degree of proof of incapacity.
(i) Description of conviction It is desirable that a court when convicting X
of this statutory crime stipulates in the description of the conviction what the
initial charge against X was – in other words, of what crime he would have been
convicted if he had not been intoxicated.292 This assists a court which must later
consult X’s list of previous convictions to ascertain what X’s conduct was.
16 Summary of present law As far as the effect of voluntary intoxication on
criminal liability is concerned, the legal position at present may be summarised
as follows:
FACTS LEGAL CONSEQUENCES
1 X intentionally drinks heavily in order The intoxication offers X no defence.
to give himself courage to commit
his intended crime.
2 X becomes intoxicated involuntarily. The intoxication offers X a complete
defence.
3 X is so intoxicated that he is in- In terms of Chretien, X is not guilty of the
capable of committing a voluntary crime with which he is charged. He may,
act – in other words, his conduct however, be convicted of contravening
takes place while he is in a state of section 1 of Act 1 of 1988
automatism resulting from intoxi-
cation
4 X is so intoxicated that he lacks Exactly the same as above
criminal capacity
5 X is so intoxicated that, although he In terms of Chretien, X is not guilty of the
has criminal capacity, he lacks the crime with which he is charged. Neither
intention required for a conviction can he be convicted of contravening
section 1 of Act 1 of 1988. However, if X is
charged with murder, he may, on the
ground of negligence, be found guilty of
culpable homicide (which is always a tacit
alternative charge to a charge of murder)
6 On a charge of committing a crime Intoxication does not exclude X’s neg-
requiring negligence (such as culp- ligence; on the contrary, it serves as a
able homicide) the evidence reveals ground for a finding that X was negligent
that X was intoxicated while en-
gaging in the conduct
continued
________________________

292 Oliphant 1989 4 SA 169 (O); Maki 1994 2 SACR 414 (E) 416a–c; Pietersen 1994 2
SACR 434 (C) 439. Contra Mbele 1991 1 SA 307 (T) 310B–D; Riddels 1991 2 SACR
529 (O) 531–532. It is submitted that the latter two decisions are incorrect: the decisions
in these two cases were influenced by the incorrect assumption that this statutory offence
should never have been created.
230 CRIMINAL LAW

FACTS LEGAL CONSEQUENCES

7 Despite his consumption of liquor, X X is guilty of the crime with which he is
complies with all the requirements charged, but the measure of intoxication
for liability, including intention may serve as a ground for the mitigation
of punishment. In exceptional cases the
intoxication may, in terms of section 2 of
Act 1 of 1988, serve as a ground for in-
creasing the punishment

F EFFECT OF PROVOCATION
1 General On charges of murder, culpable homicide or assault the evidence
often reveals that X’s aggressive conduct was immediately preceded by insult-
ing or provocative behaviour on the part of Y, which angered X and led to his
aggressive conduct. Had the insulting or provocative conduct of Y or somebody
else not taken place, X would not have killed or assaulted Y. There is therefore
a material difference between provoked homicide and non-provoked homicide,
which is, generally speaking, synonymous with premeditated murder. The ques-
tion to be discussed here is whether or to what extent X may rely on the provo-
cation as a defence. This question arises almost exclusively in cases in which X
is charged with murder.
In the course of our legal history South African courts have changed their
stance on this issue on a number of occasions, underlining the fact that the
answer to the question as to the effect of provocation on liability has been hotly
debated. The answer to this question is somewhat hampered by the absence of
any clear judgment on this issue during the last almost 40 years. The last notable
judgment on this topic dates from as long ago as 1971.293 When deciding what
the present law on the matter is, one must necessarily read between the lines of
judgments dealing with ancillary matters as well as rely on knowledge of every-
day practice in criminal trials.
2 Examples of factual situations in which X had been provoked The fol-
lowing are examples of factual situations in which X’s act had been preceded
by provocation by Y:
(i) X unexpectedly discovers Y committing adultery with his wife, or – put
even stronger – raping her. X is outraged by what he sees, loses his self-
control and kills Y.
(ii) Y states, within hearing of others as well as X, that X’s wife is unfaithful
to him (X) because he (X) is impotent. X is in fact not impotent. X be-
comes so outraged that he loses his self-control and kills Y.
(iii) Y, a homosexual, makes advances towards another man, X. He entices X
to commit homosexual acts with him (Y). X, who loathes homosexuality,
becomes infuriated with Y and kills him.
Provocation may vary in degrees. In the above three examples the provocation
may be described as very strong. Examples of provocation which are less severe,
are where, in the course of an argument, Y only swears at X or disparages him.
A scenario such as the following often unfolds in evidence in South African
________________________

293 Mokonto 1971 2 SA 319 (A).

 CULPABILITY 231

criminal courts: One evening during a weekend X socialises with friends, sharing
drinks with them. Y, one of the persons in the group, who is heavily under the
influence of alcohol, starts to quarrel with X, in the course of which he insults
X. X thereupon draws a knife and stabs Y, killing him.
3 Problems relating to effect of provocation due to wrong definition of
murder The reason why our courts have experienced problems concerning the
effect that provocation should have on liability for murder, and why they have
in the course of years on more than one occasion changed the rules relating to
its effect, can be traced to the overbroad definition of murder in our law.
In our law murder consists in the unlawful, intentional causing of another
person’s death. As far as liability (as opposed to sentence) for murder is con-
cerned, no difference is drawn between premeditated and non-premeditated
murder. The absence of such a difference is to be regretted. It has impoverished
our law and has resulted in the courts having to grapple with many legal prob-
lems which could easily have been avoided. There is a guiding policy consider-
ation behind the arrangement and definitions of the specific crimes, that is
known as the “principle of fair labelling”. It holds that the definitions of a
specific crime should, as far as possible, fairly reflect the moral or legal harm it
wishes to punish. This cannot be said as far as the crime of murder in South
African law is concerned.
There is a substantial difference between premeditated murder, which is al-
ways committed with some evil motive, and the intentional but unpremeditated
killing of another person who has provoked X before X acted with aggression.
Any reasonable person feels almost instinctively that if X had not been provoked
by Y, X would not have killed Y. It would, of course, be wrong to allege that Y
then only “got what he deserved”, because the law expects every person to exer-
cise self-control. Nevertheless, from a broad moral point of view, every reason-
able person would be inclined to extend some recognition for human weakness
and therefore to treat X’s aggressive act towards Y in a way which differs from
the way it would treat the premeditated killing of Y.
This basic premise is reflected in the fact that most other countries or juris-
dictions which South African legal writers usually refer to for legal-comparative
purposes, recognise two different crimes relating to intentional homicide. Thus
in England there is the well-known difference between murder, where the re-
quired intention is described (albeit in somewhat ancient language) as “malice
aforethought”294 and voluntary manslaughter, where, although it can be said
that X killed Y intentionally, the killing was the result of Y’s provocation.295
Substantially the same differentiated treatment of intentional homicide is found
in the USA, where (as every couch potato addicted to television would know) a
similar difference is drawn between “first-degree murder” and “second-degree
murder”. Basically the same differentiated treatment is also found all over
Europe. In Germany, for example what in England is known as murder is
punished as “Mord” and what in England is known as voluntary manslaughter as
“Totschlag”. This basic distinction is also found in other European jurisdictions.
________________________

294 Smith and Hogan ch 14.

295 Smith and Hogan ch 15; Allen 9.3.2.
232 CRIMINAL LAW

4 Three possible ways of treating provocation There are three possible

ways in which the law may treat the anger or emotional stress following Y’s
provocation of X.
(i) It may treat the provocation as affording X no defence whatsoever,
although it may serve as a ground for mitigation of punishment.
(ii) It may treat the provocation as affording X a full defence, resulting in X’s
leaving the court a free person.
(iii) It may follow some middle course and treat the provocation as a factor
affording X a partial defence, by which is meant that although he is con-
victed of a crime, the crime of which he is convicted is a less serious one.
5 Provocation ought not to afford X a complete defence Provocation
should never be allowed to afford X a complete defence, that is, a defence lead-
ing to a complete acquittal, for the following very sound policy consideration:
The law by its very nature must treat all people equally. It ought not to differen-
tiate between those who, when provoked, take the trouble to discipline them-
selves and exercise self-control, on the one hand, and those who do not do it, on
the other. If the law were to afford adult, mentally normal people who do not
control their tempers a complete defence, it would mean that disciplined people
are measured according to a standard to which the undisciplined need not
comply. Such a double standard can by no means be justified.296
It may be argued with conviction that there was a relatively short period in
which our law recognised extreme provocation as a complete defence. This
happened when the courts recognised a defence called “non-pathological crim-
inal incapacity”. This defence originated in the cases of Campher297 (1987) and
Wiid 298 (1990) and applied to cases of extreme provocation where X’s emo-
tions was allegedly so inflamed that he lacked criminal capacity. In 2002 in
Eadie299 the Supreme Court of Appeal practically sounded the death knell for
this defence. This defence has already been discussed above300 and the details
of this defence will therefore not be repeated again here. As already pointed
out, the decision in Eadie is to be welcomed. It confirms that the first way of
________________________

296 In Kensley 1995 1 SACR 646 (A) 658g–i Van den Heever JA expressed this principle
very well: “Criminal law for purposes of conviction . . . constitutes a set of norms applic-
able to sane adult members of society in general, not different norms depending on the
personality of the offender. Then virtue would be punished and indiscipline rewarded:
the short-tempered man absolved for the lack of self-control required of his more re-
strained brother. As a matter of self-preservation society expects its members, even
when under the influence of alcohol, to keep their emotions sufficiently in check to avoid
harming others and the requirement is a realistic one since experience teaches that people
normally do.” Although this statement refers to situations in which X is under the influ-
ence of liquor, the same reasoning applies to people acting under the influence of provo-
cation. Cf also Mnisi 2009 2 SACR 227 (SCA) par 5: “Loss of temper is a common
occurrence and society expects its members to keep their emotions sufficiently in check
to avoid harming others.”
297 1987 1 SA 940 (A).
298 1990 1 SACR 561 (A).
299 2002 1 SA 663 (SCA).
300 Supra V B (ii).
 CULPABILITY 233

treating provocation mentioned above, namely to treat it as a complete defence,

can be completely ruled out.
6 Middle course approach to provocation: provocation as a partial de-
fence At this stage of the discussion it is convenient next to consider the third
possible approach to provocation mentioned above, namely the so-called middle
course approach whereby provocation is treated as a partial defence. This
approach was followed by South African courts since the nineteenth century
up to roughly 1971, when the Appellate Division delivered the judgment in
Mokonto.301
The middle-course approach found its way into our law through section 141
of the old Transkeian Penal Code of 1886. According to this section, provo-
cation could have the effect of reducing murder to culpable homicide, provided
certain requirements were met, such as that X should have lost his self-control
as a result of the provocation, that X’s retaliatory acts should have taken place
before his temper has had an opportunity to cool, that X’s reaction should have
been proportionate to the provocation and that the provocation should have
been of such a nature that any ordinary person in X’s position would have lost
his power of self-control.302 In assessing the effect of provocation on liability, a
test which included objective criteria (especially the “ordinary person test”)
was accordingly used.
A very important reason why the courts adopted this test, was that until 1935
the death penalty was mandatory upon a conviction of murder, and the courts
understandably felt that a provoked killing could not be treated the same way as
an unprovoked one, for which they were obliged to impose the death sentence.
In 1971 the Appellate Division in Mokonto303 declared obiter that section 141
of the Transkeian Penal Code had to be confined to the area for which it was
enacted. This resulted in the courts turning their back on the middle-course
approach. An important point of criticism of this approach was that the pres-
ence of objective criteria in it rendered it incompatible with the by then firmly
recognised subjective test to determine the intention to murder.
7 Present law: provocation no defence The discussion immediately above
brings one to the approach to provocation mentioned above under (i) in para-
graph 4, which is also the one presently applied by our courts. According to this
approach, provocation affords X no defence on a charge of murder, although it
may furnish X a ground on which he may rely for the mitigation of punishment.
Even though the provocation is extreme, it cannot be used to “reduce” the
crime from murder to culpable homicide. X must be convicted of murder and

________________________

301 1971 2 SA 319 (A).

302 Butelezi 1925 AD 160. There have been many cases and academic discussions on the
merits or demerits of this middle-course approach. Since it no longer applies in our law,
these cases and discussions are or mere academic interest. For a detailed discussion of
this approach, the discussion of provocation in previous editions of this book may be
consulted. For a valuable more recent discussion, see Hoctor Essays in Honour of C R
Snyman 110; Botha & van der Merwe LitNet Akademies 2013 (2) 81.
303 1971 2 SA 319 (A).
234 CRIMINAL LAW

the only effect which the provocation may have is to serve as a ground for the
mitigation of punishment after X’s conviction of murder.304
A court may use the provocation as a ground for a finding that at the time of
the commission of the murder X’s responsibility was diminished in terms of
section 78(7) of the Criminal Procedure Act 51 of 1977.305 Such a finding leads
to the imposition of a less severe punishment compared to the punishment X
would have received had there been no provocation and reduced responsibility.
The reason why provocation may lead to a less severe punishment is the fact
that a crime committed in anger or rage due to provocation is morally less
reprehensible than one committed in “cold blood”.306
An important prerequisite for the use of provocation as a mitigating factor in
sentencing, is that X should have acted immediately upon the provocation,
before there was time for his temper to “cool”. Thus if the court is of the
opinion that a period which, in the context of the facts of the case, may be re-
garded as substantial, has elapsed between Y’s provocation and X’s retaliatory
act, the evidence of provocation serves rather as evidence of X’s motive for his
act than as evidence which may be used as mitigation of sentence.
Evidence of provocation may have the effect of confirming the existence of
intention.307 Evidence of provocation is then nothing more than evidence of the
initial reason or motive for X’s murder of or assault upon Y. This is especially
the case if a reasonable period (the so-called “cooling off” period) elapsed be-
tween the provocation and X’s assault upon Y.
It is submitted that provocation ought to operate as a ground for mitigation
only if there are reasonable grounds for X’s anger,308 which there would be if a
reasonable person would also have become enraged in the circumstances. An
objective standard ought, therefore, to be applied in deciding whether rage or
anger resulting from provocation should operate as a mitigating factor. If a
subjective standard were applied, it would lead to unfair results: quick-tempered
people would be entitled to hide behind their irascibility or impatience and on
that ground receive more lenient sentences. There would then be less incentive
for people to curb their emotions. The proponents of a subjective standard forget
that what has to be considered when imposing punishment is X’s moral blame-
worthiness, and that this can be ascertained only by bearing in mind what the
legal order could reasonably have expected of him.
8 Provocation by conduct Provocation may take the form of either words
uttered by Y or by conduct on his part, or a combination of the two. An example
of provocation consisting solely in conduct, is the situation where X discovers
his wife in flagrante delicto – in the course of committing adultery with Y,
whereupon he becomes so enraged that he kills Y.
________________________

304 Mnisi 2009 2 SACR 227 (SCA); Marx 2009 2 SACR 562 (E) Ndzima 2010 2 SACR
501 (ECG) par 30.
305 For a discussion of this subsection, see supra V B (iii) 12.
306 Mokonto 1971 2 SA 319 (A) 326, 327; Van Vuuren 1983 1 SA 12 (A); Mnisi 2009 2
SACR 227 (SCA) par 6.
307 See, apart from Mokonto supra, also; Grove-Mitchell 1975 3 SA 417 (A) 423; and
Lesch 1983 1 SA 814 (O) 826A.
308 Moorman Inl 2 31; Matthaeus Prol 2 14; Van der Linden 2 1 5; De Wet and Swanepoel
136; Van Niekerk 1972 SALJ 169 173–174.
 CULPABILITY 235

9 Effect of provocation in charges of culpable homicide If X is charged

with culpable homicide, which requires negligence instead of intention, the
provocation will exclude X’s negligence only if it is clear that a reasonable per-
son would also have lost his temper and would also have reacted in the way X
did. The test to determine negligence is objective, and negligence is determined
with reference to the conduct of the fictitious reasonable person. Since it is
highly unlikely that a reasonable person would lose his self-control and kill Y, it
is also highly unlikely that provocation would ever serve as a ground excluding
negligence. In fact, unless the circumstances are exceptional, one can assume
that provocation is never a complete defence on a charge of culpable homicide.
10 Effect of provocation in charges of assault If X had been charged with a
qualified form of assault, such as assault with intent to do grievous bodily
harm, it is difficult to see how evidence of provocation may result in X being
convicted, not of the qualified form of assault, but only of common assault.
Provocation can no longer, as was the case in our previous law,309 serve to
reduce the qualified form of assault to ordinary assault.
If X is charged with common assault, provocation cannot serve as a complete
defence leading to a complete acquittal. There is no less serious crime of which
X may be acquitted when charge with common assault. Evidence of provoca-
tion may at most serve as a ground for the mitigation of punishment.

G NECESSITY AS A GROUND EXCLUDING

CULPABILITY310
1 Difference between necessity which excludes culpability and necessity
which excludes unlawfulness It was pointed out above311 in the discussion of
necessity as a ground of justification that necessity may serve as either a ground
excluding the unlawfulness of the act or as one excluding culpability.
It excludes unlawfulness in the following situation: X finds himself in an
emergency situation in which he has to decide which of two opposing interests
he must infringe. He decides to infringe the interest which according to the
legal convictions of society is the less important, in order to protect that which
is of greater importance. If, however, he infringes the greater interest in order to
protect the minor one, he acts unlawfully, but this unlawful act may in certain
circumstances be excused on the basis that, considering the manner in which
the average person would have reacted in the same circumstances, the law
could not fairly have expected X to avoid the wrongdoing. He thus cannot be

________________________

309 Khumalo 1960 2 PH H245 (N); Lushozi 1968 1 PH H 21 (T); Neuboza 1970 3 SA 558
(O).
310 For a general discussion of necessity excluding culpability, see Bertelsmann 1981
THRHR 413 ff; 1982 THRHR 412 417–418; Van der Westhuizen 1981 De Jure 182
184; 1984 De Jure 369 380–381; Van der Westhuizen 368–370, 696; Burchell and Mil-
ton 276–278; Fletcher 774 ff, 802 ff, 818 ff; Jescheck and Weigend 479 ff; Schönke-
Schröder ad s 35; Jakobs ch 20 I; Kühl ch 12 B I; Eser in Eser and Fletcher 54–56, 59–
60.
311 Supra IV C 5.
236 CRIMINAL LAW

blamed for the wrongdoing and therefore lacks culpability. In Bailey 312 the
Appellate Division held unambiguously that necessity can, depending upon the
circumstance, be either a ground of justification (ie, a ground excluding un-
lawfulness) or a ground excluding culpability.
2 Example of necessity which excludes culpability Examples of necessity
functioning as a ground excluding culpability have already been given in the
discussion referred to above,313 and the important implication of the distinction
between the two forms of necessity regarding the right of the victim to act in
private defence against X, has also been pointed out. It was indicated that the
most important example of a situation in which X may rely on necessity which
negatives culpability is the case where X kills an innocent person in order to
ward off a threat to his own life. For example, two shipwrecked persons, X and
Y, vie for control of a timber beam which can support only one of them. In
order to save his own life X pushes Y away from the beam, so that Y drowns.
Another example is where Z orders X to kill Y and threatens to kill X if he
fails to obey the command; X, fearing for his life, kills Y, an innocent person.
In both these cases X can rely on necessity as a ground excluding culpability:
as already explained, the emergency situation may be the result of either natural
events (as in the example of the shipwrecked persons) or somebody else’s
conduct (as in the second example where X is coerced by Z).
The decisions and factual situations dealing with killing under coercion, espe-
cially the important decision of Goliath,314 have already been discussed in the
exposition of necessity as a ground of justification above.315 The reason why, in
circumstances such as these, necessity serves as a ground excluding culpability
and not as a ground of justification, has similarly been discussed elsewhere.316
These matters will therefore not be discussed again. It must, however, be em-
phasised again that the recognition of necessity as a ground excluding culp-
ability is based upon an acceptance and recognition of the normative theory of
culpability. The reason why in cases such as these there is no culpability is the
following: although X intentionally and with awareness of unlawfulness did
wrong, the law could not fairly have expected the average person in the same
situation to have avoided the wrongdoing.

H STRICT AND VICARIOUS LIABILITY

(i) STRICT LIABILITY
1 Introduction and description The expression “strict liability” means
liability in respect of which the requirement of culpability is dispensed with. It
refers to the rule applied by the courts in the past that there are, or may be,
certain statutory crimes in respect of which no culpability is required. Strict
liability is encountered only in crimes created by statute. It plays no role in
common-law crimes; in these crimes culpability is invariably required.
________________________

312 1982 3 SA 772 (A) 796A.

313 Supra IV C 5.
314 1972 3 SA 1 (A).
315 Supra IV C 8.
316 Supra IV C 5, 8; V A 9–10.
 CULPABILITY 237

Considering how essential the requirement of culpability is in a civilised

legal system, one might assume that it would also be required in respect of all
statutory crimes. This is not the case, however. It has been accepted in the past
that nothing prevents parliament from creating a crime not requiring culpabil-
ity. If in creating a statutory crime the legislature expressly stipulates that no
culpability – be it intention or negligence – is required for liability, there was
nothing a court could do about it. This was the position until at least before the
coming into operation of the present Constitution.
However, it seldom happens that the legislature, when creating a crime,
expressly stipulates whether culpability is required or not. The legislature is
usually simply silent about culpability. The court must then decide whether the
legislation should be interpreted in such a way that culpability is required or
not. Under the influence of English law the courts have adopted the principle
that even when the legislature in creating a statutory crime is silent on the re-
quirement of culpability, a court is nevertheless free to interpret the provision
as not requiring culpability. It is this principle which will be discussed here.
2 Decrease in cases favouring strict liability The principle according to
which a court is free to interpret a statutory provision creating a crime in such a
way that no culpability is required is, and has often been, controversial. One of
the most important points of criticism against strict liability is that it should be
left to the legislature to exclude the culpability requirement explicitly, if it so
wishes, and that it is not the task of the courts to decide whether culpability
ought to be required or not. In order to decide whether culpability is required, a
court must consider a number of vague and speculative factors which may
sometimes lead to conflicting conclusions.
Until roughly the sixties of the past century, the courts often interpreted the
definitions of statutory crimes in such a way that no culpability – intention or
negligence – was required. However, since about 1970 there has been a signifi-
cant decrease in the number of cases holding that a statute has created strict
liability. As far as could be ascertained, since 1970 there have been only three
cases in which a court has interpreted a statute as being one creating strict liabil-
ity.317 This decrease can be attributed to the continued criticism of the principle
of strict liability, as well as the greater willingness of the courts to hold that the
legislature tacitly requires culpability in the form of negligence.

________________________

317 These decisions are Makwasie 1970 2 SA 128 (T); Ismail v Durban Corporation 1971 2
SA 606 (N) 610; and Di Stefano 1977 1 SA 770 (C). The decision in Williamson 1972 2
SA 140 (N) 145, in which it was held that no culpability is required for a conviction of
“drunken driving”, is obviously wrong and was overruled by the Appellate Division in
Fouché 1974 1 SA 96 (A) 101–102. The three other decisions are subject to criticism:
in these cases the courts could have held that culpability was required in the form of
negligence. In Amalgamated Beverage Industries Natal (Pty) Ltd v Durban City Coun-
cil 1992 2 SACR 181 (N) (the case of the bee in the cool drink bottle) the court held
that a certain offence created in a municipal by-law which deals with food and drink
had created strict liability, but this decision was reversed on appeal by the majority of
the court in Amalgamated Beverage Industries Natal (Pty) Ltd v City Council of Dur-
ban 1994 1 SACR 373 (A). The Appellate Division held that culpability in the form of
negligence was required for a conviction.
238 CRIMINAL LAW

3 Strict liability may be unconstitutional Since the coming into operation

of the present Constitution it is uncertain whether the principle according to
which a court is free to interpret a statutory provision creating a crime in such a
way that no culpability is required for liability is compatible with the Consti-
tution. In the USA it is usually accepted that the principle of strict liability is
not incompatible with the due process provision in the American Constitution,318
while it was held in Canada that it does infringe upon the Canadian Charter of
Rights and Freedoms, provided that such an interpretation results in imprison-
ment being imposed upon X (because he is then deprived of his “liberty and
security of his person”), but that it is not wrong to place a burden on X to prove
that he had not acted negligently.319
In South Africa it may be argued that the principle of strict liability is incom-
patible with the right to a fair trial provided for in section 35(3) of the Constitu-
tion, as well as with the right to freedom and security of the person provided for
in section 12(1) of the Constitution.320 Whatever the constitutional status of
strict liability may be, it seems clear that it is becoming increasingly difficult
for the state to convince a court that a statutory criminal provision has created
strict liability.
4 Principles for determination of strict liability A statute may explicitly
exclude culpability as a requirement – something which seldom happens.321 It
may also clearly or expressly require it, as in the use of words such as “inten-
tionally”, “maliciously”, “knowingly”, “fraudulently”, “recklessly”, “wilfully”,
“allows”, “permits”, “suffers”, as well as, in certain cases, “fails”, but generally
speaking never if it uses the expression “calculated to”.322 In the vast majority
of cases the statute is silent on culpability, and it is then for the courts to deter-
mine the intention of the legislature with reference to the principles set out below.
The rules for determining whether a statutory provision creating a crime
which is silent about culpability should nevertheless be interpreted as requiring
culpability, are the following: As a point of departure one must presume that

________________________

318 United States v Balint (1922) 258 US 250; Morisette v United States (1952) 342 US
246; Dressler 129–130; La Fave 155–157, 246–247.
319 Motor Vehicles Act Reference (1985) 23 CCC (3d) 289, [1985] 2 SCR 486 48 CR (3d)
289; Martin’s Annual Criminal Code 1997 CH 15–CH 16; Stuart Charter Justice 50–
56; Wholesale Travel Inc (1991) 8 CR (4th) 145 (SCC); R v Hess; R v Nguyen (1990)
59 CCC (3d) 161.
320 In Coetzee 1997 1 SACR 379 (CC) 414–422 Kentridge J in his dissenting judgment
mentioned this possibility but did not express any definite view on the issue. However,
O’Regan J stated it clearly in her judgment that strict liability may be unconstitutional:
“[A]s a general rule people who are not at fault should not be deprived of their freedom
by the State . . . Deprivation of liberty, without established culpability, is a breach of this
established rule”(442h–i). Cf also the remarks in Magagula 2001 2 SACR 123 (T) 145–
146. In this case the court (146b) was of the opinion that, in the light of the limitation
clause, there may be circumstances in which the Legislature can constitutionally create
statutory offences creating strict liability.
321 Cf s 175 of the Liquor Act 27 of 1989 and s 50 (5) of the Sea Fishery Act 12 of 1988.
322 For a detailed discussion of the meaning of these words as they appear in criminal pro-
hibitions, see LAWSA 6 111, 377; Milton and Cowling 2 II D 2.3.
 CULPABILITY 239

parliament did not intend to exclude culpability, unless there are clear and con-
vincing indications to the contrary.323 Such indications may be found in
(a) the language and context of the provision;
(b) the scope and object of the provision;
(c) the nature and extent of the punishment;
(d ) the ease with which the provision may be evaded if culpability were
required; and
(e) the reasonableness of holding that culpability is not required.324
There is in addition the general rule that a court will not lightly assume that the
legislature intended to exclude culpability.325 Each of these indications or tests
will now be considered separately.
5 Discussion of rules for determining whether liability is strict As regards
the first test mentioned above (namely the language and context of the prohib-
ition), the ordinary rules of interpretation of statutes must be followed in order to
ascertain the intention of the legislature. One example of the application of these
rules is that one must consider the use of similar words or expressions elsewhere
in the same Act, as well as the meaning of these words elsewhere in the Act.
As regards the second test stated above (namely the scope and object of the
provision), the consideration is that a court must try to determine whether the
crime created is one in the sphere of public welfare. As a rule, the so-called
“public welfare offences” always require strict liability. It is difficult to define
these offences precisely: generally speaking, they relate to our modern industrial
and technological society, and it is often argued that the culpability requirement
would be an impediment here. Public welfare, which allegedly demands strict
liability, is said to outweigh the individualistic approach to criminal law which
insists upon culpability as a fundamental ingredient of liability.
Examples of such offences are to be found in legislation dealing with factories,
mining operations, the manufacture and distribution of medicine and drugs,
public transport and public sanitary services. Two examples of conduct which
may be punishable, which are directly related to public welfare, and which
according to the test under discussion ought not to require culpability, are the
following: first, an employee at a food canning factory accidentally puts the
wrong chemical substance into food as a preservative, thus exposing thousands of
people to food poisoning, and secondly, the owner of a heavy truck, mistakenly
thinking that his driver has already done the prescribed check of the braking
system of the truck, puts a dangerously unroadworthy vehicle on the road.
As regards the third test mentioned above (namely the nature and extent of
the punishment), the idea is that if the Act prescribes a severe punishment, one
________________________

323 Arenstein 1964 1 SA 361 (A) 365; Arenstein 1967 3 SA 366 (A) 381; Oberholzer 1971
4 SA 602 (A) 610; De Blom 1977 3 SA 513 (A) 532; Amalgamated Beverage Industries
Natal (Pty) Ltd v City Council of Durban 1994 1 SACR 373 (A) 375.
324 Arenstein 1964 1 SA 361 (A) 365; WC and MJ Botha (Edms) Bpk 1977 4 SA 38 (T) 42;
Sayed 1981 1 SA 982 (C) 986; Du Toit 1981 2 SA 33 (C) 36; Evans 1982 4 SA 346 (C)
349; Amalgamated Beverage Industries Natal (Pty) Ltd v City Council of Durban supra
375.
325 Salmonson 1960 4 SA 748 (T) 751; Pretorius supra 739.
240 CRIMINAL LAW

may infer that parliament did not intend to create strict liability, and that the
less severe the prescribed punishment, the more probable it is that it meant to
exclude culpability.326
As regards the fourth test mentioned above (namely the ease with which the
prohibition might be evaded if culpability were required), the consideration is
that if the conduct is of such a nature that it would be difficult for the state to
prove X’s state of mind, this is an indication that parliament did not intend to
require culpability. This test is speculative and dependent on the subjective views
of the particular judge. The argument that if it is difficult to prove culpability the
requirement may be discarded is irreconcilable with sound principles of justice.
The objection to the fifth test mentioned above (namely the reasonableness of
holding that culpability is not required ), is that it is always unreasonable to
interpret a prohibition in such a way that a person may be punished for an
offence when he does not have culpability. Apart from this, the test is a two-
edged sword: is it reasonableness towards the individual or reasonableness
towards the community on which the criterion is based?
6 Negligence as middle course Intention is not the only form of culpability
in our law. Negligence may also be sufficient. A court may hold that the form
of culpability required for a particular statutory crime is not intention, but neg-
ligence.327 Whether it is intention or negligence which is required is a matter of
interpretation of the relevant statute. By holding that negligence is required, a
court avoids the unsatisfactory conclusion that the crime is one of strict liabil-
ity, while at the same time serving the interests of public welfare by requiring
of the individual an objective standard of care. In this way a satisfactory com-
promise is reached.
7 Intention or negligence? If a court decides that the legislature did not
intend to create strict liability, it must decide which form of culpability – inten-
tion or negligence – is required for the particular crime. The starting-point is
usually that the legislature required intention and that only in exceptional
circumstances could it have intended culpability in the form of negligence.328
This approach is clearly correct. It should be remembered that if the form of
culpability required is negligence, far more people are affected by the prohibi-
tion than if intention were required.
Among the indications that the legislature intended negligence to be the form
of culpability, are the following: the fact that the legislature requires a high
degree of circumspection in the performance of a certain activity;329 the fact

________________________

326 Arenstein 1964 1 SA 361 (A) 366; Arenstein 1967 3 SA 366 (A) 382; Ohlenschlager
1992 1 SACR 695 (T) 782f; Claassens 1992 2 SACR 434 (T) 437g–h.
327 Arenstein 1964 1 SA 361 (A) 366; Qumbella 1966 4 SA 356 (A) 359, 364–365;
Qumbella 1967 4 SA 577 (A) 580; Fouché 1974 1 SA 96 (A); Oberholzer 1971 4 SA
602 (A) 612; Amalgamated Beverage Industries Natal (Pty) Ltd v City Council of Dur-
ban 1994 1 SACR 373 (A).
328 Ohlenschlager 1992 1 SACR 695 (T) 782, especially 782i–j; Claassens 1992 2 SACR
434 (T) 438a–b. Cf also Melk 1988 4 SA 561 (A).
329 Arenstein 1964 1 SA 361 (A) 366; Du Toit 1981 2 SA 33 (C) 38H–39A; Melk supra
578; Masondo 1989 3 SA 734 (N) 740; Claassens supra 438h–i.
 CULPABILITY 241

that the legislation is aimed at a very dangerous and prevalent social evil;330 and
the fact that the dangerous conduct which the legislature wishes to combat is
usually committed negligently (as in road traffic legislation).331 Otherwise the
question of whether intention or negligence is required is answered by con-
sidering the same factors, mentioned above, which are considered in order to
determine whether culpability is a requirement for the particular statutory crime.
8 Criticism of strict liability In the above332 discussion of the criteria which
the courts apply to determine whether the legislature intended to create strict
liability, various points of criticism were levelled at the tests. The criteria are
vague and speculative, and even a judge of appeal has described them as
“ambivalent considerations”.333 It is difficult to believe that in these cases the
courts are really trying to ascertain the intention of the legislature. The truth is
that the question as to culpability is mostly not even considered by parliament.
The impression one gets is that parliament leaves it to the courts to decide
whether culpability is a requirement of the crime. The result is that the courts
are taking over the task of the legislature – a task to which they are not suited
and which falls outside their scope. In order to decide whether culpability ought
to be required, it is often necessary for the court to form some opinion on the
socio-political necessity of the provision. This is in conflict with a judge’s task
of interpreting the law and not making it. The allegedly obstructive effect of the
requirement of culpability in the proper implementation of legislation relating
to public welfare is also grossly exaggerated.
Possibly the best-founded objection to strict liability is that based on a proper
understanding and application of the theories of punishment. According to
these theories, it is pointless to punish somebody who lacks culpability: a
person is not deterred from committing a particular offence if he is in danger of
being convicted of it regardless of his knowledge of the surrounding circum-
stances. Nor is it possible to prevent crime on this basis. In addition, the theory
of retribution cannot find any application where there is no moral blamewor-
thiness. Lastly, there is no room for the reformative theory since X has no need
of reformation.
It seems that in recent times our courts – especially the Appellate Division –
have been unwilling to hold that a statute has created strict liability. As pointed
out, it is also often held that though culpability is required, it is culpability in the
form of negligence, not intention, which is required. The ideal is that the legis-
lature should state clearly whether it excludes culpability, and if it does not do
so, the courts should assume that culpability is required. The courts can further
the realisation of this ideal by strictly applying a presumption of culpability –
even if it is culpability in the form of negligence – thereby exerting pressure on
the legislature to specify any exclusion of culpability clearly and unambiguously.

________________________

330 Sayed 1981 1 SA 982 (C) 987; Mnisi 1996 1 SACR 496 (T) 501.
331 Fouché 1973 3 SA 308 (NC) 313D–E.
332 Supra par 5.
333 Per Holmes JA in Qumbella 1966 4 SA 356 (A) 364.
242 CRIMINAL LAW

(ii) VICARIOUS LIABILITY

1 Description In primitive legal systems a whole community was sometimes
held liable for the misdeeds of one of its members, even though they had no
culpability in respect of its commission. In a civilised legal system nobody ought
to be held liable for a crime committed not by himself but by another, provided
he was not a party to the crime. Only those who acted with culpability ought to
be punished.
However, in our law in certain exceptional instances a person may be liable
for a crime committed by another. This form of liability is known as vicarious
liability. As far as common-law crimes are concerned, one can never be liable
for a crime committed by another to which one was not a party and in respect
of which one had no culpability. Vicarious liability is possible only in statutory
crimes. The legislature may, when creating a crime, expressly declare that cer-
tain other people or categories of people will also be guilty of the commission
of a crime if, for example, they stand in a certain relationship to the real per-
petrator, for example that of employer to employee.
In such cases the legislature may hold an employer liable for crimes commit-
ted by an employee, even though the employer was not even aware of the
employee’s acts, provided those acts were performed by the employee in the
course of his employment. Thus the holder of a liquor licence has been held
responsible for a barman’s acts which contravene the provisions of the Liquor
Act.334 The policy underlying the creation of such vicarious liability is that it
will encourage the employer to ensure that his employees’ conduct complies
with the provisions of the law; he should not be allowed to hide behind his
employees’ mistakes; their mistakes are imputed to him; he has delegated his
powers to them and more often than not gains financially from their activities.
Therefore, their actions are deemed to be his actions.
If the legislature creates vicarious liability expressly or by necessary impli-
cation, there is, of course, nothing a court can do about it, except to examine
whether such a provision is constitutional. Many writers, however, object to the
fact that courts sometimes too readily read vicarious liability into a provision
which does not expressly create it. It is often accepted that if the legislature
created a crime involving strict liability, it also intended to create vicarious
liability.335
The tests or criteria used to determine whether vicarious liability was created
are reminiscent of the tests used to determine whether strict liability was cre-
ated, namely: the language used by the legislature; the scope and purpose of the
prohibition; the measure of punishment; whether the legislature’s intention will
be frustrated if one assumes that no vicarious liability was created; whether the
employer gains financially by the employee’s act, and whether only a limited
number of people (eg licence holders), as opposed to the community in general,
________________________

334 Banur Investments (Pty) Ltd 1969 1 SA 231 (T); Sahd 1992 2 SACR 658 (E) 661,
which dealt with the crimes created in ss 160 and 162 of the Liquor Act 27 of 1989.
335 Weinberg 1939 AD 71 82–83; Ex parte Minister of Justice: in re R v Nanabhai 1939
AD 427 431; Amalgamated Beverage Industries Natal (Pty) Ltd v City Council of Dur-
ban 1994 1 SACR 373 (A) 380, 385–390.
 CULPABILITY 243

are affected by the provision.336 (If only a limited number of people are affected,
it is more readily assumed that vicarious liability was created.) The objections
to strict liability which were discussed above,337 apply to vicarious liability too.

________________________

336 Ex parte Minister of Justice: in re R v Nanabhai supra 430–431; Steyn 1964 1 SA 845
(O) 850; Kamfer 1965 1 SA 521 (SWA); Amalgamated Beverage Industries Natal (Pty)
Ltd v City Council of Durban supra 383.
337 Supra V H (i) 4–5, 8.
 CHAPTER
VI

CRIMINAL LIABILITY OF
CORPORATE BODIES

1 Introduction Only a human being can perform an act, as the latter term is
understood in criminal law. There is an exception to this general rule: a corpor-
ate body can also in certain circumstances engage in conduct and be liable for a
crime. The law distinguishes between a natural person on the one hand and a
legal persona, juristic person, corporation or corporate body on the other. The
latter is an abstract body of persons, an institution or entity which can also be
the bearer of rights and duties, without having a physical or visible body or a
mind. Examples of corporate bodies are companies, universities, Escom, church
societies and a local authority.
2 Desirability of punishing a corporate body It is sometimes debated
whether it is desirable to punish an entity such as a corporate body which is not,
like a natural person, capable of thinking for itself or of forming any intention
of its own. It is sometimes said that the idea of blameworthiness inherent in the
concept of culpability presupposes personal responsibility – something which
an abstract entity such as a corporate body lacks. The corporate body has no
physical existence and does not think for itself or act on its own; its thinking and
acting are done for it by its directors or servants, and it is argued that it is these
persons of flesh and blood who ought to be punished.
On the other hand, there is in practice a great need for this form of liability,
especially today when there are so many corporate bodies playing such an im-
portant role in society. It is very difficult to track down the individual offender
within a large organisation; an official can easily shift blame or responsibility
onto somebody else. In any event, other branches of the law, such as the law of
contract, acknowledge that a corporate body is capable of thinking and of exer-
cising a will. This form of liability is especially necessary where failure to per-
form a duty specifically imposed by statute on a corporate body (eg, the duty to
draw up and submit certain returns or reports annually), constitutes a crime.1
________________________

1 There has recently been calls for a rethinking of the basis for, and provisions relating to,
corporate liability. See Jordaan 2003 Acta Juridica 48 70; Borg-Jorgensen and Van der
Linde 2011 TSAR 452 and 684.

245
246 CRIMINAL LAW

Holding a corporate body criminally liable raises certain procedural questions

such as who must be summoned, who must stand in the dock, who must act on
the corporate body’s behalf during the trial, and what punishment must be im-
posed. In South Africa the matter has been regulated by statute since 1917. The
original section 384 of the Criminal Procedure and Evidence Act 31 of 1917 has
been replaced by other sections, and at the moment the matter is governed by
the provisions of section 332 of the Criminal Procedure Act 51 of 1977.
3 Liability of corporate body for the acts of its director or servant The
section formerly distinguishes between the liability of the corporate body for
the acts of a director or servant, and the liability of the director or servant for
the “acts” of the corporate body.
An act by the director or servant of a corporate body is deemed to be an act of
the corporate body itself, provided the act was performed in exercising powers
or in the performance of duties as a director or servant,2 or if the director or ser-
vant was furthering or endeavouring to further the interests of the corporate
body.3 A corporate body can commit both common-law and statutory crimes.4
It can commit crimes requiring intention, those not requiring intention (that is,
crimes requiring negligence)5 and strict liability crimes.6
Acts by a director or servant are held to include not only acts performed by
such persons personally, but also acts performed on their instructions or with
their express or implied permission.7 The culpability of the director or servant
is similarly ascribed to the corporate body.8 The word “director” has an extended
meaning: it means any person who controls or governs a corporate body or who
is a member of a body or group of persons which controls or governs a corporate

________________________

2 S 332(1). A trust created by a notarial deed of trust is not a corporate body, and cannot be
charged in terms of this section – Peer 1968 4 SA 460 (N). A company created for an
ostensibly lawful purpose, but in reality pursuing an unlawful end is, however, subject to
the provisions of this section – Meer 1958 2 SA 175 (N).
3 S 332(1). The result of this is that the criminal liability of a corporate body is wider than
its liability under civil law. Cf Bennet and Co (Pty) Ltd 1941 TPD 194. For examples of
acts committed in furthering or endeavouring to further the interests of a corporate body,
see Booth Road Trading Co (Pty) Ltd 1947 1 SA 34 (N); Philips Dairy (Pty) Ltd 1955 4
SA 120 (T); Barney’s Super Service Station (Pty) Ltd 1956 4 SA 107 (T) 108; Banur
Investments (Pty) Ltd 1969 1 SA 231 (T) 233–234; SA Metal and Machine Co (Pty) Ltd
2010 2 SACR 413 (SCA).
4 S 332(1). Theoretically speaking, a corporate body can therefore be guilty even of murder.
Cf the discussion in Bennet and Co (Pty) Ltd supra. It is not uncommon for corporate
bodies to be charged with and convicted of culpable homicide. See eg Bennet and Co
(Pty) Ltd supra and Joseph Mtshumayeli (Pvt) Ltd 1971 1 SA 33 (RA). In the last-
mentioned case a transport company was held liable when one of its employees, a bus
driver, caused an accident by allowing a passenger to drive the bus.
5 As in Bennet and Co (Pty) Ltd supra; Joseph Mtshumayeli (Pvt) Ltd supra and Ex parte
Minister van Justisie: in re S v SAUK 1992 4 SA 804 (A) 809.
6 S 332(1) – see the phrase “with or without a particular intent”. See also Ex parte Minister
van Justisie: in re S v SAUK supra 807H.
7 S 332 (1).
8 Ibid.
 CRIMINAL LIABILITY OF CORPORATE BODIES 247

body.9 Where there is no such body or group of persons, the term “director”
refers to any person who is a member of the corporate body.10
4 Director or servant no longer liable for crimes of corporate body Sec-
tion 332(5) of the Criminal Procedure Act provides that a director or servant of
a corporate body may be convicted of a crime committed by the corporate body,
unless she can prove that she did not take part in the commission of the crime
and that she could not have prevented it. In Coetzee11 the Constitutional Court
held that this provision was unconstitutional because it created a reverse onus
which infringed the presumption of innocence in section 35(3)(h) of the Consti-
tution and that this violation could not be justified in terms of the limitation
clause in section 36(1).
5 Appearance at trial, plea, punishment Who must stand in the dock at the
prosecution of a corporate body, who must speak on its behalf and what punish-
ment can be imposed on it? To solve these problems, the section provides as
follows: In any prosecution against a corporate body, a director or servant of that
corporate body is cited, in her capacity as its representative, as the offender.12
She may then be treated as if she were the accused.13 It is she who has to stand
in the dock. If she pleads guilty, the plea is not valid unless the corporate body
has authorised her to plead guilty, except in the case of minor crimes where a
fine may be paid as an admission of guilt.14 If the corporate body is convicted,
the court may not impose any punishment other than a fine, even if the statute
which created the crime does not make provision for the imposition of a fine.15
The fine must then be paid by the corporate body, even if this necessitates the
attachment and sale of its property.16 The reason why a fine is the only punish-
ment which can be imposed is of course the fact that an entity that has no phys-
ical existence cannot be thrown into gaol.
6 Association of persons The section further provides that if a member of an
association of persons which is not a corporate body commits a crime in the
course of carrying on the business or affairs of the association, or while en-
deavouring to further its interests, any person who is a member of that associ-
ation at the time of the commission of the crime is deemed to be guilty of the
crime, unless she proves, first, that she did not take part in the commission of
the crime and, secondly, that she could not have prevented it.17 If the business
or affairs of the association are governed or controlled by a committee or other
similar body, these provisions are not applicable to a person who was not, at the
________________________

9 S 332(10); Mall 1959 4 SA 607 (N); Marks 1965 3 SA 834 (W).

10 S 332(10).
11 1997 1 SACR 379 (CC). (The judgment was not unanimous.)
12 332(2); Hammersma 1941 OPD 39.
13 S 332(2).
14 S 332(2)(a); Lark Clothing (Pty) Ltd 1973 1 SA 239 (C); Stojilkovic 1995 1 SACR 435
(T).
15 S 332(2)(c).
16 S 332(2)(c).
17 S 332(7). On this subsection, see Couvaras 1946 OPD 392; Limbada 1958 2 SA 481 (A).
An association pursuing an unlawful purpose also falls within the scope of the subsection
– Ismail 1965 1 SA 452 (N) 458.
248 CRIMINAL LAW

time of the commission of the crime, a member of that committee or other body.18
The association of persons as an abstract entity cannot commit a crime itself,
since it is not a corporate body. A partnership is not a corporate body, but is an
association of persons for the purposes of the provision in question.19
Whether these provisions of section 332(7), which creates the liability just set
out, is compatible with the constitution, is very doubtful. These provisions, like
those in subsection (5) of section 332, create a reverse onus which violates the
presumption of innocence, and this presumption may not be justifiable in terms
of the limitation clause. The reasons set out in Coetzee20 for holding that sub-
section (5) is unconstitutional, may also apply to the present subsection (7).

________________________

18 S 332(7). The committee or governing body must be elected, and not be a self-appointed
“supreme command” – Ismail supra 459.
19 Levy 1929 AD 312 322; Solomon v Law Society of the Cape of Good Hope 1934 AD 407
410; Couvaras supra.
20 1997 1 SACR 379 (CC).
 CHAPTER
VII

PARTICIPATION AND ACCESSORIES

AFTER THE FACT

A GENERAL
1 Introduction In the discussion of criminal liability thus far it has been
assumed that only one person was involved in the commission of the crime.
However, it is well known that crimes are often committed by a number of
persons acting together, as where A, B, C and D agree to rob a store. A first
finds out where the money is kept in the store, B then holds up the shopkeeper
(Y) with a gun, while C puts the money into a bag and D keeps guard outside
the store in order to give timeous warning should the police arrive. One may
extend this example by assuming that E had previously promised A, B, C and D
a reward for robbing the store; that the shopkeeper Y surprises the robbers by
offering resistance when he is threatened; that B then shoots him and that F,
who hears about the robbery only afterwards, helps the robbers by disposing of
Y’s body in a river and by hiding the bag containing the money under his bed
for some time. Which of these persons, A to F, is now guilty of murder, robbery
or theft? To what extent does the liability of one depend upon that of the other,
and can different persons participate in the commission of one and the same
crime in varying degrees? It is questions of this nature which will be answered
in the discussion which follows.
2 Perpetrator, accomplice and accessory after the fact: an overview The
different persons who may be involved in the commission of a crime are divided
into three categories, namely perpetrators, accomplices and accessories after the
fact. The first two categories, namely perpetrators and accomplices, may jointly
be described as participants. They both participate in the commission of the
crime because they either commit it themselves or promote its commission. An
accessory after the fact is not a participant for he in no way promotes the
commission of the crime. The division of persons who may be involved in the
commission of the crime may be illustrated as follows in a diagram:

249
250 CRIMINAL LAW

Persons involved
in a crime

Participants Non-participants

Perpetrators Accomplices Accessories after

the fact

(a) Perpetrator A person is a perpetrator if (a) his conduct, the circum-

stances in which it takes place and the culpability with which it is carried out
are such that he satisfies all the requirements for liability contained in the def-
inition of the crime, or (b) if he acted together with one or more persons and the
conduct required for a conviction is imputed to him by virtue of the principles
relating to common purpose. The latter principles will be discussed in due
course. Leaving the doctrine of common purpose aside for the moment, it is
clear that in order to determine whether somebody is a perpetrator, one must
consider, firstly, the definition of the crime and, secondly, whether that person,
in terms of his conduct, the circumstances in which it takes place and the culp-
ability with which it is carried out, complies in all respects with this definition.1
(b) Accomplice The crime of bigamy is committed if a person who is already
married, enters into what purports to be a second marriage. Assume that X is a
minister of religion who solemnises a marriage while knowing that Y, one of the
parties to the new “marriage”, is already married. X can then not be a perpetrator
to the crime of bigamy, because the crime is defined in such a manner that it
can be committed by only a person who is already married and who is a party
to a marriage ceremony purporting to bring about a lawful marriage with some-
body else. (In other words, the crime can only be committed by the man and/or
woman who are “getting married”.) What X does, is unlawfully and intentionally
to further, facilitate or make possible the commission of a crime committed by
somebody else. It would not be to the credit of any legal system to allow some-
body in the position of the X in the above example to go unpunished merely
because his or her conduct does not comply in every respect with the definition
of the crime. In our law such a person is punishable as an accomplice.
An accomplice is somebody who does not satisfy all the requirements for
liability contained in the definition of the crime or who does not qualify for
liability in terms of the principles relating to common purpose, but who never-
theless unlawfully and intentionally furthers its commission by somebody else.

________________________

1 Williams 1980 1 SA 60 (A) 63.

 PARTICIPATION AND ACCESSORIES AFTER THE FACT 251

He consciously associates himself with the commission of the crime by assist-

ing the perpetrator or co-perpetrators or by giving them advice or supplying them
with information or by offering them the opportunity or means to commit the
crime or to facilitate its commission.2
Certain crimes can only be committed by persons who comply with a certain
description. The prohibition may, for example, be directed against only a licence
holder, a driver of a motor vehicle, a certain gender, persons practising a certain
profession, or persons holding a certain citizenship. Persons not complying with
this particular description, but who nevertheless further the commission of the
crime by somebody who does comply with it, are accomplices. Again, probably
most crimes are defined in such a way that they can be committed by a certain,
defined act only, such as sexual penetration, the giving of evidence (perjury),
entering into a marriage (bigamy) or possessing a certain article (such as dagga).
A person who does not commit this particular act but who, by means of another
act, nevertheless promotes or facilitates the commission of this crime is an
accomplice to it.
(c) Accessory after the fact At this stage it is clear that both a perpetrator
and an accomplice promote the commission of the crime before it is completed.
The accessory after the fact, on the other hand, is somebody who, after the
commission of the crime, unlawfully and intentionally helps the perpetrator or
accomplice to escape liability.3 A good example of an accessory after the fact is
somebody who had nothing to do with a murder but who, after a murder has
been committed, hears about it for first time and then helps the murderer to get
rid of the corpse by, for example, throwing it into a river with a heavy stone
attached around its neck.
The accessory after the fact comes into the picture only after the crime has
already been completed. For this reason it cannot be said that he promotes or
facilitates the commission of the crime, and he is therefore not a participant in
its commission. If, however, before the commission of the murder he agrees
with the murderers to dispose of the corpse, the picture changes completely. He
may then himself be a co-perpetrator, if it appears that he acted in a common
purpose with the real murderer, or that for other reasons, there was a causal
nexus between the assistance he promised and the victim’s death.
The rules relating to (co-)perpetrators, accomplices and accessories after the
fact are the same in respect of both statutory and common-law crimes.
3 Terminology Before each of the three groups, namely perpetrators, accom-
plices and accessories after the fact, is discussed in further detail, it is necessary
briefly to explain the terminology used in our law on this subject. This is espe-
cially necessary if one wants to find one’s way about our case law.
(a) Meaning of words and expressions Before 1980 (and, regrettably, at
times even thereafter) the courts, instead of speaking of a perpetrator and an
accomplice, used the vague term socius criminis (plural socii criminis) to refer
to both. The courts differentiated between the principal offender (sometimes also
________________________

2 Williams supra 63; Maxaba 1981 1 SA 1148 (A) 1156; Saffier 2003 2 SACR 141 (SEC)
42b–d.
3 Infra VII D.
252 CRIMINAL LAW

called the “actual perpetrator”) on the one hand, and a socius criminis on the
other. This distinction is futile and ought to be discarded. It is a distinction
which has nothing to do with the material difference between perpetrators and
accomplices. Socii criminis (which can literally be translated as “partners in a
crime”) include all participants (in other words, all perpetrators and accom-
plices) excluding the principal offender. If one therefore describes somebody as
a socius criminis, it means that the basic differentiation between a perpetrator
and an accomplice has not yet been drawn. After the acceptance by the Appel-
late Division in Williams 4 of the difference between perpetrators and accom-
plices, there is no longer any room in our law for the expression socius criminis.
“Aider and abettor” usually means “an accomplice”. If there is more than one
perpetrator, they are known as co-perpetrators.5
(b) Technical and popular meaning of the word “accomplice” Confusion
may easily arise about the meaning of the word “accessory”. This word may
have two meanings, depending whether one uses the word in its technical or
“popular” meaning. The technical meaning is the one assigned to it above. This
is the correct meaning of the term, and the one that will be used throughout in
this book. According to the popular meaning of the word, it can refer indiscrim-
inately to all participants (all so-called socii criminis). Even the courts some-
times err and use the word in its popular sense. In the public media the word is
mostly used in this popular meaning (“any person who helps another in the
commission of a crime”). However, in order to avoid confusion, the use of this
word in its popular sense should be avoided.

B PERPETRATORS
1 Summary of principles relating to perpetrators The main principles
relating to perpetrators may be summarised as follows:

1 A person is a perpetrator if –
(a) his conduct, the circumstances in which it takes place (including,
where relevant, a particular description with which he as a person
must, according to the definition of the crime, comply) and the culp-
ability with which it is carried out are such that he satisfies all the
requirements for liability contained in the definition of the crime; or
(b) although his own conduct does not comply with that required in the
definition of the crime, he acted together with one or more persons
and the conduct required for a conviction is imputed to him by virtue
of the principles relating to common purpose (set out below).6

continued

________________________

4 1980 1 SA 60 (A).
5 These are also the terms expressly preferred by Corbett JA in Khoza 1982 3 SA 1019 (A)
1031D.
6 Infra pars 6–16.
 PARTICIPATION AND ACCESSORIES AFTER THE FACT 253

2 If two or more persons act together and they all comply with the above
definition of a perpetrator, they are all co-perpetrators. There is no rule
to the effect that if two or more people are involved in the commission
of a crime only one of them can qualify as a perpetrator and that the
other(s) must all fall in a different category.
3 For a person to be a perpetrator, it matters not whether he commits the
crime himself or makes use of an agent (human or non-human) to
effect the commission. This rule, however, does not apply to crimes
which can be committed only with a person’s own body, such as the
old common-law crime of rape.

In the discussion which follows, the above rules relating to perpetrators will be
explained in more detail. Paragraphs 2 to 5 deal with the criteria set out in rule
1(a) above. Paragraphs 6 to 16 are devoted to a discussion of the doctrine of
common purpose (referred to in rule 1(b) above).
2 Co-perpetrators: not necessary to single out principal perpetrator If a
number of persons commit a crime together, it is unnecessary to stipulate that
only one of them can be the perpetrator, and that the others who help in its
commission must necessarily fall into a different category. It is not always
practicable to identify one principal perpetrator or, as he is sometimes called,
“principal offender” or “actual perpetrator”. What criterion should be applied to
determine which one of a number of participants qualifies as the principal per-
petrator? One cannot allege that the principal perpetrator is the person who
himself stabs the victim or, where theft is involved, removes the article, for a
person may commit a crime through the instrumentality of another. If a number
of people commit a crime and they all comply with the requirements for per-
petrators set out above, they are all simply co-perpetrators. A co-perpetrator
does not fall into any category other than that of a perpetrator.7
Two persons may act in such a way that each contributes equally to the crime,
as where (within the context of murder) A takes the victim by the arms, B takes
him by the legs and together they throw him over a precipice. One co-
perpetrator’s contribution may be more or less than that of the other, as where
(within the context of murder) A enters a house and shoots and kills Y while B
merely keeps guard outside the house. Both are nevertheless co-perpetrators in
the commission of the murder, if the conduct of both can be described as the
unlawful intentional causing of the death. That one is a perpetrator in no way
detracts from the fact that the other is also a perpetrator.
3 Distinction between direct and indirect perpetrators not material The
distinction that may be drawn between direct and indirect perpetrators is irrele-
vant. An indirect perpetrator is somebody who commits a crime through the
instrumentality of another. X, for example, hires Z to murder Y. X is then an
indirect perpetrator and Z, who plunges a knife into Y’s chest, the direct per-
petrator. “Direct” perpetrator and “indirect” perpetrator are merely convenient
________________________

7 Williams 1980 1 SA 60 (A) 63; Maxaba 1981 1 SA 1148 (A) 1155; and see generally the
discussion in Maelangwe 1999 1 SACR 133 (NC) 146 ff; Kimberley 2004 2 SACR 38
(E) 42b–d; Buda 2004 1 SACR 9 (T) 19g–i.
254 CRIMINAL LAW

terms to use when one is describing a factual situation. The difference between
the two has no bearing on a person’s liability. In the eyes of the law, Z is
nothing more than an instrument which X uses to commit the crime, and X
would be guilty even if Z were an innocent agent, because of mental illness, for
example. (In the latter case Z would of course not be a direct perpetrator; he
would, in fact, not be guilty at all.)
The above-mentioned principle is, however, subject to the following excep-
tion: in autographic crimes it is not possible for one person to commit the crime
through the instrumentality of another. Autographic crimes are crimes which
can by definition be committed only with one’s own body. Examples of such
crimes are the former common-law crime of rape, before a new statutory defin-
ition of the crime was enacted,8 and other crimes of which sexual intercourse is
an element, such as the former common-law crime of incest. For example, if X
persuaded Z to have intercourse with Y without her (Y’s) consent, and Z in fact
did so, X could not be guilty of the former common-law crime of rape, since he
did not himself have intercourse with Y.9
4 Liability of perpetrator not accessory in nature The liability of a per-
petrator or co-perpetrator is based on his own act and his own culpability.10
Unlike that of an accomplice, his liability is not accessory in character. It does
not depend upon the commission of a crime by somebody else: his liability is
completely independent.
In Parry,11 for example, X was charged, together with Z, with murdering Z’s
wife. At the trial Z was found not guilty because of mental illness. It was argued
on behalf of X that he, too, ought to be acquitted since there was no guilty
principal offender. This argument was deservedly rejected, and X was convicted
of murder, for his guilt results from his own act and his own state of mind.
5 Being co-perpetrators of murder by applying ordinary principles of caus-
ation Murder is a particularly widely defined crime, because of the require-
ment of causation. One can cause another’s death in many different ways. For
reasons that will be set out below,12 it is submitted that exactly because murder
has such a wide definition, it is impossible to be an accomplice to this crime. If
two or more people are involved in the commission of a completed murder, all
of them are co-perpetrators.
X may be convicted of murder as a perpetrator or co-perpetrator of murder on
two possible grounds.
(1) X may be convicted of murder simply by applying the ordinary princi-
ples of liability, and more particularly the ordinary principles of causation. Here
one does not apply any particular special doctrine, and more particularly not the
doctrine of common purpose.

________________________

8 Saffier 2003 2 SACR 141 (SEC) 143–145; Kimberley supra 42–43.

9 Gaseb 2001 1 SACR 438 (NmS) 466g; Saffier 2003 2 SACR 141 (SEC) 144–146;
Kimberley 2004 2 SACR 38 (E) 42–43.
10 Thomo 1969 1 SA 385 (A) 394; Nooroodien 1998 2 SACR 510 (NC) 516c–d.
11 1924 AD 401.
12 Infra VII C 4.
 PARTICIPATION AND ACCESSORIES AFTER THE FACT 255

(2) X may be convicted of murder by applying the doctrine of common pur-

pose. Here one “bypasses”, as it were, the causation requirement, which is often
very difficult to prove. The first-mentioned ground will be considered first. The
second ground, that is, an application of the doctrine of common purpose, is set
out in paragraphs 6 to 15 below.
If a number of people kill Y, each of them will, according to the ordinary
principles of liability, and more particularly the ordinary principles of causa-
tion, be guilty of murder as co-perpetrators if it is clear that, intending to kill Y,
each has committed an unlawful act which is causally connected with Y’s
death. Thus if X takes Y by the arms and Z takes him by the legs and together
they throw him over a precipice both of them are co-perpetrators.
If two or more persons decide to murder Y, for all of them to be liable as co-
perpetrators it is not necessary that each of them should stab Y or fire a shot at
him. It is not even necessary for each of them to touch Y, or be present at the
scene of crime. There may, for example, be a causal connection between X’s
act and Y’s death even if he merely transports Z to and from the scene of crime,
or supplies him with information about Y’s whereabouts, or stands next to him
while he attacks Y, ready to help if necessary, or stands guard outside the
building while Z does the killing, or merely encourages or incites13 him to shoot
Y, or merely gets him to do it. To be merely a passive spectator or witness of
the murder is, of course, insufficient.14
If X conspires with one or more other people to murder Y, Y is indeed mur-
dered in execution of the conspiracy and the court can infer from the evidence
that there is a causal nexus between X’s act of conspiracy and Y’s death, X is a
co-perpetrator of the murder, even though he did not shoot or stab Y himself, or
even if he was not even at the scene of crime.15
6 Necessity of doctrine of common purpose If a number of people acting
together killed Y, it is often very difficult to find with certainty that the acts of
each of them contributed causally to Y’s death. The facts may be such that there
is no doubt that at least one of the group, namely the one who actually shot and
killed Y, caused his death, but there are also situations in which the conduct of
no single one of the group can with certainty be described as a cause (at least in
the sense of conditio sine qua non) of Y’s death. The latter situation occurs
especially where a large number of people together kill Y. It may then be dif-
ficult to base their liability for the joint murder on merely an application of the
general principles of liability. There is usually no difficulty in finding that every-
body’s conduct was unlawful and that each member of the group entertained
the intention to kill. What is, however, often difficult to establish is that the
individual conduct of each member satisfied the requirement of causation.
This may be illustrated by the following example: assume that a group of
twenty people decide to kill Y by stoning him to death, and in fact do so. In
order to determine whether a particular member of the group caused Y’s death
according to the ordinary principles, one must apply the conditio sine qua non
________________________

13 Njenje 1966 1 SA 369 (RA); Lamont 1977 2 SA 679 (RA) 682.

14 Petersen 1989 3 SA 420 (A) 425A–B; Barnes 1990 2 SACR 485 (N) 491b.
15 Nooroodien 1998 2 SACR 510 (NC) 518f–h; Buda 2004 1 SACR 9 (T) 20.
256 CRIMINAL LAW

test and ask the following question: if the act of that particular member of the
group were “thought away”, would Y nevertheless have died?16 The answer to
this question is obviously “yes”, since it is clear that the conduct of the remain-
ing nineteen members of the group would have been sufficient to cause Y’s
death. Accordingly, one must accept that that particular member of the group
did not cause Y’s death. The same consideration applies in respect of the other
nineteen members of the group. Thus if one were to determine the liability of
an individual member of the group with the aid of the ordinary principles of
causation, there is a real danger that all twenty members of the group might
escape liability for murder because of absence of proof of a causal link between
each member’s act and Y’s death. Such a conclusion would be counter-
intuitive, since it is clear that Y would not have died but for the conduct of the
group. This argument proves why it is necessary to work with a special doc-
trine, namely the doctrine of common purpose.17
If the doctrine of common purpose did not exist, it would mean that if X
wants to murder Y without rendering him guilty of murder, he would easily be
able do this by merely ensuring that he does not act alone, but together with a
number or other people. X must only ensure that the murder, committed by a
number of people, is committed in such a way that a court cannot afterwards
identify a “principal perpetrator”, such as one who has actually stabbed Y with
a knife in his heart, even though it is clear that the murder was committed by an
identifiable number of people acting together. This would mean that the more
effective the attack is on Y (in that Y is confronted by an attack, not only by a
single attacker, but by a number of attackers, who, exactly because there is a
number of them, can ensure through a division of labour that the murder is
executed more effectively), the smaller (more difficult or impossible) will be
the chances of a court convicting any one of the murder. Such a situation will
be acceptable to neither the community nor the legal order.
7 The doctrine of common purpose: summary of principles In order to
overcome problems such as those set out above in the previous paragraph, the
courts apply a specific doctrine to enable it to convict a number of people
acting together of murder. This doctrine is known as the doctrine of common
purpose.

The main principles relating to this important doctrine may be summarised

as follows:
1 If two or more people, having a common purpose to commit a crime,
act together in order to achieve that purpose, the conduct of each of
them in the execution of that purpose is imputed to the others.
2 In a charge of having committed a crime which involves the causing of
a certain result (such as murder), the conduct imputed includes the
causing of such result.
continued
________________________

16 Cf the discussion of this test for causation supra III B 7.

17 See also the reasoning in Mzwempi 2011 2 SACR 237 (ECM) par 45–46.
 PARTICIPATION AND ACCESSORIES AFTER THE FACT 257

3 Conduct by a member of the group of persons having a common pur-

pose which differs from the conduct envisaged in the said common
purpose may not be imputed to another member of the group unless the
latter knew that such other conduct would be committed, or foresaw
the possibility that it might be committed and reconciled himself to
that possibility.
4 A finding that a person acted together with one or more other persons in
a common purpose is not dependent upon proof of a prior conspiracy.
Such a finding may be inferred from the conduct of a person or persons.
5 A finding that a person acted together with one or more other persons
in a common purpose may be based upon the first-mentioned person’s
active association in the execution of the particular criminal act of the
other participant(s). However, in a charge of murder this rule applies
only if the active association took place while the deceased was still
alive and before a mortal wound or mortal wounds had been inflicted
by the person or persons with whose conduct such first-mentioned per-
son associated himself.
6 If, on a charge of culpable homicide the evidence reveals that a number
of persons acted with a common purpose to assault or commit robbery
and that the conduct of one or more of them resulted in the death of the
victim, the causing of the victim’s death is imputed to the other mem-
bers of the group as well, but negligence in respect of the causing of
the death is not imputed.
7 The imputation referred to above in statement 1 does not operate in re-
spect of charges of having committed a crime which can be committed
only through the instrumentality of a person’s own body or part there-
of, or which is generally of such a nature that it cannot be committed
through the instrumentality of another.

These principles will now be explained and analysed in more detail.

8 The doctrine of common purpose – general In order inter alia to over-
come difficulties relating to causation as explained in paragraph 6 above, the
courts apply a special doctrine, called the common purpose doctrine, to facilitate
the conviction for murder of each separate member of the group. The essence
of the doctrine is that if two or more people, having a common purpose to
commit a crime, act together in order to achieve that purpose, then the conduct
of each of them in the execution of that purpose is imputed to the others.18
The doctrine is couched in general terms and therefore not confined to one
type of crime only.19 However, the best known application of the doctrine – at
________________________

18 Shaik 1983 4 SA 57 (A) 65A; Safatsa 1988 1 SA 868 (A) 894, 896, 901; Mgedezi 1989 1
SA 687 (A); Thebus 2003 2 SACR 319 (CC) 341e.
19 Cases in which the doctrine was applied to crimes other than murder include Wilkens
1941 TPD 276 and Mashotonga 1962 2 SA 321 (R) (public violence); Maelangwe 1999 1
SACR 133 (NC) 147b–c (housebreaking); Peraic 1965 2 PH H201 (A); Khambule 2001
1 SACR 501 (SCA) (robbery); A 1993 1 SACR 600 (A) 606i–607a and Mitchell 1992 1
SACR 17 (A) 23 (assault); Mongalo 1978 1 SA 414 (O) and Windvogel 1998 1 SACR
125 (C) (theft); Del Ré 1990 1 SACR 392 (W) (fraud); Banda 1990 3 SA 466 (B) 500E
[continued]
258 CRIMINAL LAW

least in our reported case law – is to be found within the context of the crime of
murder. The discussion of the doctrine which follows, will, for the sake of sim-
plicity, therefore be limited to its application to the crime of murder.
The crucial requirement is that the persons must all have had the intention to
murder and to assist one another in committing the murder. Once that is proved,
the act of X, who actually shot and killed Y, is imputed to Z, who was a party
to the common purpose and actively associated himself with its execution, even
though a causal relationship between his (Z’s) act and Y’s death cannot readily
be proved.20 X’s act is then regarded as also that of Z.21
It is not unjust to impute X’s act, which caused the death, to Z. By engaging
in conduct in which he co-operates with X’s criminal act, Z forfeits his right to
claim that the law should not impute to him another’s unlawful act. He signifies
through his conduct that the other person’s (ie, X’s) act is also his.22
It is, however, only X’s act which is imputed to Z, not X’s culpability. Z’s
liability is based upon his own culpability (intention).23 There need not neces-
sarily be a prior conspiracy. The common purpose may also arise spontaneously
or on the spur of the moment,24 and evidence of the behaviour of the different
co-accused may lead a court to conclude that this has happened.25 The operation
of the doctrine does not require each participant to know or foresee in detail the
exact way in which the unlawful result will be brought about.26
The basis of the doctrine used to be the idea that each member of the plot or
conspiracy gave the other an implied mandate to execute the unlawful criminal
act,27 and accordingly the liability of those participants in the common purpose
who did not inflict the fatal blow depended upon the question of whether the
unlawful criminal result fell within the mandate.28
9 The judgment in Safatsa In Safatsa29 a crowd of about one hundred people
attacked Y, who was in his house, by pelting the house with stones, hurling
________________________

(treason); Nkosi 1998 1 SACR 284 (W); Khambule supra 507e–f, 508b–c; Motsema 2012
2 SACR 96 (SGJ) (unlawful possession of firearm); Mambo 2006 2 SACR 563 (SCA)
(escaping from lawful custody).
20 Safatsa 1988 1 SA 868 (A) 896.
21 Daniëls 1983 3 SA 275 (A) 323F; Shaik 1983 4 SA 57 (A) 65A; Safatsa 1988 1 SA 868
(A) 896, 901; Thebus 2003 2 SACR 319 (CC) 341–343.
22 See the explanation by Dressler 429 of the corresponding principle in American law. The
author speaks of “forfeited identity”, which means that “she who chooses to aid in a
crime forfeits her right to be treated as an individual . . . [she] says, as it were, ‘your acts
are my acts’ ”.
23 Malinga 1963 1 SA 692 (A) 694.
24 Mambo 2006 2 SACR 563 (SCA) 570f–g.
25 Khoza 1982 3 SA 1019 (A) 1053; Safatsa 1988 1 SA 868 (A) 898B; Maelangwe 1999 1
SACR 133 (NC) 150–151.
26 Shezi 1948 2 SA 119 (A) 128; Maelangwe supra 148e–f.
27 Mgxwiti 1954 1 SA 370 (A) 382; Motaung 1961 2 SA 209 (A).
28 Motaung 1961 2 SA 209 (A). For cases in which participants in a plot were held to be not
liable for the act of murder performed by another participant, because it fell outside the
common purpose, see the positions of accused no. 2 and 3 in Robinson 1968 1 SA 666
(A) 673D–F; Chimbamba 1977 4 SA 803 (RA); Talane 1986 3 SA 196 (A); Mitchell
1992 1 SACR 17 (A) 23.
29 1988 1 SA 868 (A).
 PARTICIPATION AND ACCESSORIES AFTER THE FACT 259

petrol bombs through the windows, catching him as he was fleeing from his
burning house, stoning him, pouring petrol over him and setting him alight. The
six appellants were part of the crowd. According to the court’s finding, their
conduct consisted of acts such as grabbing hold of Y, wrestling with him, throw-
ing stones at him, exhorting the crowd to kill him, forming part of the crowd
which attacked him, making petrol bombs and setting Y’s house alight. In a
unanimous judgment delivered by Botha JA, the Appellate Division confirmed
the convictions of the six accused who were convicted of murder. The Appel-
late Division based their convictions on the doctrine of common purpose, since
it found that they all had the common purpose to kill Y.
The court rejected the argument advanced on behalf of the accused that they
could be convicted of murder only if a causal connection were proved between
the individual conduct of each of the accused and Y’s death.30 The court in fact
assumed that it had not been proved that the individual conduct of any of the
six accused contributed causally to Y’s death.31 It is sufficient that the indi-
vidual participant actively associated himself with the execution of the common
purpose.32
10 Active association in common purpose The basis upon which the doc-
trine operates is the individual accused’s active association with the common
purpose. The notion of active association is wider than that of agreement. Agree-
ment, whether express or implied, is merely one form of active association.33 It
is seldom possible to prove the existence of a previous agreement between the
participants, and it is precisely for this reason that the concept of active associ-
ation plays an important role as a ground for the liability of each of them.
If there is proof of a previous agreement between the participants (something
which can seldom be proven), it is relatively easy to make the inference that
each participant associated himself with the others. However, if, as is most often
the case, there is no proof of a previous agreement, the following five require-
ments must, according to the decision of the Appellate Division in Mgedezi,34
be complied with:
(1) X must have been present at the scene where the violence was being
committed;
(2) X must have been aware of the assault on Y by somebody else;
(3) X must have intended to make common cause with the person or persons
committing the assault;
(4) X must have manifested his sharing of a common purpose by himself per-
forming some act of association with the particular conduct of the others;
and
(5) X must have intended to kill Y.
________________________

30 At 896E.
31 At 894 F–G.
32 At 901.
33 Whiting 1986 SALJ 38 39–40; Matsukis 1988 SACJ 226 231–232.
34 1989 1 SA 687 (A) 705I–706C. See the application of the principles laid down in this
case in Jama 1989 3 SA 427 (A) 436; Barnes 1990 2 SACR 485 (N) 492; Nooroodien
1998 2 SACR 510 (NC) 517–518; Mbanyaru 2009 1 SACR 631 (C).
260 CRIMINAL LAW

With the exception of the first and third requirements, all these requirements
are reasonably obvious. As far as the first requirement is concerned, it must be
emphasised that it applies only if there is no proof of a previous agreement to
commit the crime.35 Quite apart from this, this requirement does not detract
from the general rule relating to indirect perpetrators – that is, the rule that one
person can procure another to commit the crime in his absence.36
The third requirement above makes it clear that the particular accused and
those performing the actual assault should consciously have shared a common
purpose. The fact that two or more persons happened to have the same goal
without being aware of one another is not enough. There must have been con-
scious co-operation between them.
The mere fact that a person happened to be present at the scene of the crime
and was a passive spectator of the events cannot serve as a basis for holding
him liable for the crime that has been committed.37 What is more, the fourth
requirement mentioned above is to the effect that even if the passive spectator
tacitly approves of the actual perpetrator’s criminal act, it still does not afford a
basis for inferring that he actively associated himself with the commission of
the crime.38
Association with a common purpose should not be confused with ratification
of another’s criminal deed which has already been completed; criminal liability
cannot be based on ex post facto ratification of another’s unlawful act.39
11 Difference between prior conspiracy and active association In order to
avoid the common-purpose doctrine becoming too wide and thereby leading to
unjust results, the following restriction to its operation should be noted: If
reliance is placed on a prior agreement or conspiracy between the participants,
it is enough to prove that X agreed with the wide and general common design
of the conspirators. However, if reliance is placed not on a previous conspiracy,
but on active association, there must be proof that X associated himself, not with
the wide and general common design, but with the specific act whereby the
other participant(s) committed the crime.40 Another point of difference between
these two “forms” of common-purpose liability is that in cases where liability is
based on prior conduct, X need not be present at the scene of the crime at the
time of the commission of the crime, whereas his presence at the scene is
________________________

35 In Memani 1990 2 SACR 4 (TkA) 8 it was emphasised that the mere fact that X was
present at the scene of the crime but had not performed any act through which he associ-
ated himself with the commission of the crime was insufficient to hold him liable for the
crime in terms of the doctrine of common purpose.
36 Yelani 1989 2 SA 43 (A).
37 Petersen 1989 3 SA 420 (A) 425A–B; Barnes 1990 2 SACR 485 (N) 491b; Mbanyaru
2009 1 SACR 631 (C) par 14–16.
38 Barnes 1990 2 SACR 485 (N) 492h; Mbanyaru supra par 14–16.
39 Thomo 1969 1 SA 385 (A) 399; Williams 1970 2 SA 654 (A) 658–659; Motaung 1990 4
SACR 485 (A) 520–521.
40 Mzwempi 2011 2 SACR 237 (ECM) par 53, discussed by Hoctor 2011 SACJ 202. In this
judgment the court was (correctly, it is submitted) critical of the majority decision of the
Appeal Court in Nzo 1990 3 SA 1 (A), which favoured the wider test for imputation.
Hoctor ibid and 2011 Annual Survey of South African Law 346 ff) criticises the court’s
interpretation of Nzo.
 PARTICIPATION AND ACCESSORIES AFTER THE FACT 261

required for liability based on active association.41 A third point of difference is

that in cases of liability based on prior agreement no proof that X actively
associated himself with the actual commission of the crime at the time of its
commission is required.42 It follows that liability arising from active association
is more restrictive in nature than liability arising from a prior agreement.43
12 Common purpose and dolus eventualis For X to have a common pur-
pose with others to commit murder it is not necessary that his intention to kill
be present in the form of dolus directus. It is sufficient if his intention takes the
form of dolus eventualis, in other words if he foresees the possibility that the
acts of the participants with whom he associates himself may result in Y’s
death and reconciles himself to this possibility.
Thus if a number of persons take part in a robbery or housebreaking, and in
the course of events one of them kills somebody, the mere fact that they all had
the intention to steal, to rob or to break in is not necessarily sufficient to war-
rant the inference that all of them also had the common purpose to kill. One can
steal, rob or break in without killing anybody. Whether the member of the gang
who did not directly participate in the shooting or stabbing of or assault upon
the deceased also had the intention to murder, must be decided on the facts of
the individual case. Such an inference may, for example, be drawn from the
fact that that particular member of the gang knew that the assailant carried a
revolver or a knife and that he might use it, or knew that there would be people
inside the house who would resist the housebreaking.44 The liability of an
associate in a common purpose to commit an unlawful act depends upon his
own culpability (intention).45 The intention of the perpetrator who fired the
actual shot that killed Y, cannot be imputed to other members of the group.
13 Application of common purpose doctrine in charges of culpable homi-
cide It is conceptually impossible to intend to be negligent,46 and therefore
one would be inclined to argue that the common purpose doctrine can never be
applied to convict people of culpable homicide. However, after the decisions of
the Appellate Division in Nkwenja47 and Magmoed v Janse van Rensburg,48
read with Safatsa,49 it is now clear that the doctrine can be applied in charges of
culpable homicide in order to overcome difficulties in proving causation.
________________________

41 Mzwempi supra pars 54, 56, 76, 77.

42 Mzwempi supra par 54.
43 Mzwempi supra par 77.
44 This part of the text was quoted with apparent approval in Gedezi 2010 2 SACR 363
(WCC) par 55. For examples of the application of the principle set out in the text, see
Nkomo 1966 1 SA 831 (A); Maxaba 1981 1 SA 1148 (A) 1156; Phillips 1985 2 SA 727
(N) 735; Mbatha 1987 2 SA 272 (A); Nzo 1990 3 SA 1 (A) 5–8; Mkhize 1999 2 SACR
632 (W) 638f–g. For cases in which the courts have held that one of the members of a
gang did not have dolus eventualis in respect of Y’s death, see Magwaza 1985 3 SA 29
(A); Talane 1986 3 SA 196 (A) 207–208; Munonjo 1990 1 SACR 360 (A); Molimi 2006
1 SACR 8 (SCA) 18–21; Dube 2010 1 SACR 65 (KZP).
45 Malinga 1963 1 SA 692 (A) 694; Memani 1990 2 SACR 4 (TkA) 7b.
46 Coetzee 1974 3 SA 571 (T) 572; Ntanzi 1981 4 SA 477 (N) 482F–G.
47 1985 2 SA 560 (A), followed in Ramagaga 1992 1 SACR 455 (B).
48 1993 1 SACR 67 (A) 78b–f.
49 1988 1 SA 868 (A).
262 CRIMINAL LAW

Safatsa50 made it clear that according to the common purpose doctrine it is the
act of causing death – in other words the causal nexus between the one (or per-
haps more than one) perpetrator’s act and the victim’s death – that is attributed
to the other members sharing the common purpose, and that this doctrine can
never be used to attribute one perpetrator’s culpability (intention) to another.
Each perpetrator’s culpability must be determined independently in order to
convict him of murder. The same principle applies to culpable homicide: if it is
proved that a number of people had a common purpose to commit a crime other
than murder (such as assault, housebreaking or robbery), and that in the course
of executing this common purpose the victim has been killed, the one per-
petrator’s act of causing the death can be attributed to the other members of the
common purpose. However, the negligence of one perpetrator can never be
attributed to another. Every party’s negligence in respect of the death must be
determined independently.51
14 Common purpose doctrine not applicable to autographic crimes Auto-
graphic crimes are crimes that can be committed only through the instrumental-
ity of a person’s own body.52 The common purpose doctrine cannot be applied
to crimes that cannot be committed through the instrumentality of another per-
son but can only be committed through a person’s own body or part thereof. A
good example of such a type of crime is the former common-law crime of rape
before it was redefined by the legislature.
Thus, in the days when the common-law definition of rape still applied, that
is, when a male person, X, had sexual intercourse with female Y per vaginam,
while his friend Z assisted him by restraining Y but without himself having
intercourse with her, Z could not be a (co-) perpetrator, but only an accomplice
to the rape.53 Possible further examples of crimes that cannot be committed
through the instrumentality of another are perjury, bigamy and driving a vehicle
under the influence of liquor.
15 Common purpose doctrine is constitutional In Thebus54 the Consti-
tutional Court held that the doctrine is compatible with the Constitution. The
doctrine does not infringe X’s right to dignity and freedom. It is, according to the
court, rationally linked to a lawful aim, namely the combating of criminal activ-
ities by a number of people acting together. If the doctrine did not exist, there
would have been the unacceptable situation that only the person who had actually
committed the principal act (in other words, who actually stabbed Y with a knife
in his chest) would have been guilty, whereas those who have intentionally con-
tributed to the commission of the principal act would not have been guilty of
the crime committed by the principal perpetrator. The judgment must be wel-
comed, despite the fact that the grounds advanced by the court for its decision
do not always go to the core of the reason for the existence of the doctrine.55
________________________

50 Ibid.
51 Kwadi 1989 3 SA 524 (NC); Whitehead 2008 1 SACR 431 (SCA) 436.
52 Kimberley 2004 2 SACR 38 (E) 43d–e.
53 Saffier 2003 2 SACR 141 (SEC) 143–145; Kimberley 2004 2 SACR 38 (E) 42–43.
54 2003 2 SACR 319 (CC). For a very good critical analysis of this judgment, see Friedman
2003 Annual Survey 770–774.
55 For the real reasons for the existence of the doctrine, see supra par 6. Some of the argu-
ments advanced by the court in par 40 of the judgment are not particularly convincing.
[continued]
 PARTICIPATION AND ACCESSORIES AFTER THE FACT 263

16 Withdrawal from common purpose Just as association with the com-

mon purpose leads to liability, dissociation or withdrawal from the common
purpose may, in certain circumstances, negative liability. It is, however, not any
kind of withdrawal which has this effect. South African courts have not yet
developed very specific rules relating to the circumstances in which withdrawal
will effectively terminate X’s liability, but it is submitted that the following
propositions are a fair reflection of our law on this subject:56
Firstly, in order to escape conviction on the ground of a withdrawal from the
common purpose, X must have the clear and unambiguous intention to with-
draw from such purpose.57
Secondly, in order to succeed with a defence of withdrawal, X must perform
some positive act of withdrawal. Mere passivity on his part cannot be equated
with a withdrawal, because by his previous association with the common pur-
pose he linked his fate and guilt to that of his companions.
Thirdly, the withdrawal must be voluntary.58 If X withdraws after becoming
aware that the police had uncovered the plot, the withdrawal is not voluntary,
and in any event is too late and does not constitute a defence.
Fourthly, the withdrawal will amount to a defence only if it takes place be-
fore the course of events have reached what may be called the “commencement
of the execution” – that is, the stage when it is no longer possible to desist from
or frustrate the commission of the crime.59 Whether this stage has been reached
depends upon the type of crime envisaged and the attendant circumstances.60
________________________

Firstly, the argument that there is a “considerable societal distaste for crimes by common
design” may be criticized on the ground that the perceptions of society are not decisive in
deciding whether a rule of criminal law is constitutional or not. There is also “considerable
societal distaste” for the abolition of capital punishment for murder, but the same court
held in Makwanyane 1995 2 SACR 1 (CC) that a court should not allow itself to be per-
suaded by society’s “tastes or distastes”. Secondly, the argument that group activities “strike
more harshly at the fabric of society and the rights of victims than crimes perpetrated by
individuals” may be criticized on the ground that Y’s right to life in this case would have
been equally infringed had she been murdered by the act of a single perpetrator as opposed
to the actions of a number of perpetrators. Thirdly, the argument that there is a “pressing
social need” for the doctrine is vague. There is also a “pressing social need” for the com-
bating of crime committed by a single individual. Fourthly, the argument that there is a
need for “a strong deterrent for violent crime” is rather meaningless, because there is like-
wise a great need for deterrence in respect of violent crime committed by a single per-
petrator. The court comes somewhat nearer to the crux of the debate when it states that
group activities “pose particular difficulties of proof of the result of the conduct of each
accused, a problem which hardly arises in the case of an individual accused person.”
56 See generally Khuluse 1992 SACJ 173; Parmanand 1992 SACJ 180; Hales 1992 SACJ
187; Paizes 1995 SALJ 561.
57 Singo 1993 2 SA 765 (A) 772H–I.
58 Nzo 1990 3 SA 1 (A) 10; Beahan 1992 1 SACR 307 (ZS) 322a–b; Lungile 1999 2 SACR
597 (SCA) 603g–h; Musingadi 2005 1 SACR 395 (SCA) 408i–j.
59 Ndebu 1986 2 SA 133 (ZS) 137A–D.
60 Thus merely to run away (because of timidity or otherwise) after the victim has been
physically caught but before he is killed does not qualify as an effective withdrawal from
a common purpose to murder. See also the quotation from an American case in Ndebu
supra 135H–I: “A declared intent to withdraw from a conspiracy to dynamite a building
is not enough, if the fuse has been set; he must step on the fuse.”
264 CRIMINAL LAW

Fifthly, the type of act required for an effective withdrawal depends upon a
number of circumstances. It is difficult or impossible to formulate in advance
general requirements concerning the acts which are applicable in all cases. If it
is possible for X to communicate with his companions, his chances of succeed-
ing with the defence of withdrawal are better if he informs his companions of his
withdrawal;61 and if he does this, his chances of succeeding with the defence
are stronger if he also endeavours to persuade his companions to desist from
their plan. However, for the defence to succeed he need not necessarily succeed
in his attempt to dissuade them; neither is it necessary for him actually to frus-
trate their plan – a mere attempt on his part to do so may be sufficient to qualify
as an effective withdrawal. On the other hand, although an attempt to frustrate
the commission of the crime is strong evidence of an effective withdrawal, it is
not in all circumstances an indispensable precondition for the withdrawal to suc-
ceed as a defence.62 What amounts to dissociation from the common purpose in
one case may not amount to dissociation from the common purpose in another.
The surrounding circumstances play an important role.
Sixthly, the role played by X in devising the plan to commit the crime has a
strong influence on the type of conduct which the law requires him to perform in
order to succeed with a defence of withdrawal. Somebody whose role is rela-
tively small (such as a person who has done nothing more than merely agree to
assist in the commission of the crime) may more easily escape conviction by
withdrawing from the common purpose than someone who has played a promin-
ent role in the planning or conspiracy.63 Whereas the former may possibly escape
liability by simply abandoning the group, a court would probably require the
latter to actively attempt to dissuade his companions from proceeding with the
plan or to warn the police timeously of the planned commission of the crime so as
to enable the police to prevent the crime from being committed.64 Even if X suc-
ceeds with the defence of withdrawal, he may still be convicted of conspiracy
(or, depending on the evidence, of incitement) to commit the crime envisaged.
17 The liability of the so-called “joiner-in” The term “joining-in” has
been coined to describe the following type of situation: X, acting either on his
own or together with others in a common purpose, has already wounded Y
lethally. Thereafter, while Y is still alive, Z, who has not previously (expressly
or tacitly) agreed with X or his associates to kill Y, arrives at the scene and in-
flicts an injury on Y which, however, does not hasten his death. Thereafter Y
dies as a result of the wound inflicted by X. The person in Z’s position is refer-
red to as a “joiner-in”. He associated himself with others’ common purpose at a

________________________

61 Ndebu 1986 2 SA 133 (ZS) 137C: “The risk which he deliberately took was not related to
what he himself might do but what his armed companion might do if challenged or cut
off. He had linked his fate and his guilt with that of his armed companion. The mind that
needed changing was not his but his companion’s.” For a case in which the defence of
withdrawal succeeded without X informing his companions, see Nzo supra 10–11 (X
confessed the whole plan of operation to the police).
62 Chinyerere 1980 2 SA 576 (RA) 579G–H; Beahan supra 322d; Singo 1993 2 SA 765 (A) 772.
63 Musingadi 2005 1 SACR 395 (SCA) 409g–i. Cf Nomakhlala 1990 1 SACR 300 (A) 304;
Nduli 1993 2 SACR 501 (A) 504e–f; Singo supra 772.
64 Beahan 1992 1 SACR 307 (ZS) 324c; Musingadi supra.
 PARTICIPATION AND ACCESSORIES AFTER THE FACT 265

stage when Y’s lethal wound had already been inflicted, although Y was at that
time still alive.
In order to characterise the “joining-in” situation properly it is important to
bear the following in mind: Firstly, if the injuries inflicted by Z in fact hastened
Y’s death, there can be no doubt that there is a causal connection between Z’s
acts and Y’s death and that Z is therefore guilty of murder. Secondly, if Z’s
assault on Y takes place after Y has already died from the injuries inflicted by
X or his associates, it is similarly beyond doubt that Z cannot be convicted of
murder for the simple reason that the crime cannot be committed in respect of a
corpse.65 Thirdly, if the evidence reveals a previous conspiracy between X (or
X and his associates) and Z to kill Y, Z is guilty of murder by virtue of the doc-
trine of common purpose, since X’s act in fatally wounding Y is then imputed
to Z. The “joining-in” situation presupposes the absence of a common purpose
between X and Z.
Nobody denies that the “joiner-in” is punishable for some crime. The question
is merely, of what crime must he be convicted? Before 1990 there was great
uncertainty in our law regarding the question whether Z should be convicted of
murder as a co-perpetrator or whether he should be convicted of attempted
murder only. In 1990 in Motaung66 the Appellate Division considered the differ-
ent views on the matter and in a unanimous judgment delivered by Hoexter JA
ruled that the “joiner-in” could not be convicted of murder, but of attempted
murder only. One of the most important reasons advanced by the court for its
decision was that at the time that Z performed his own act of injuring Y, all the
acts leading to Y’s death had already been completed. To convict Z of murder
on the ground of his association with such a crime would amount to holding
him liable ex post facto or retrospectively for acts already completed by others
before he performed his own act. Criminal law ought not to recognise such a
form of liability; one ought not to be convicted of a crime committed by some-
body else merely on the ground of one’s ratification of a deed already completed.
It is submitted that the judgment in Motaung is correct and should be wel-
comed. It has brought to an end much uncertainty in our case law as well as a
long and involved debate in our legal literature.

C ACCOMPLICES
1 Introduction and definition It is not only where a person complies with
the requirements for liability as a perpetrator as set out above that he is punish-
able. As was seen above, he is also punishable even when these requirements
are not met, if he unlawfully and intentionally furthers a crime committed by
somebody else by, for example, giving the latter advice or assisting him. He is
then an accomplice.

________________________

65 In such a case Z may possibly be convicted of attempted murder. See infra VIII B 8.
66 1990 4 SA 485 (A), followed in Mbanyaru 2009 1 SACR 631 (C).
266 CRIMINAL LAW

Accomplice liability may be defined as follows:

1 A person is guilty of a crime as an accomplice if, although he does not
satisfy all the requirements for liability contained in the definition of
the crime and although the conduct required for a conviction is not im-
puted to him by virtue of the principles relating to common purpose, he
unlawfully and intentionally engages in conduct whereby he furthers
the commission of a crime by somebody else.
2 The word “furthers” in rule 1 above includes any conduct whereby a
person facilitates, assists or encourages the commission of a crime,
gives advice concerning its commission, orders its commission or
makes it possible for another to commit it.67

2 Technical and popular meaning of the term “accomplice” Confusion can

easily arise over the meaning of the term “accomplice”. It is important to note
that the term may have two different meanings, which may be termed the “tech-
nical” (or narrow) and the “popular” (or broad) meanings respectively.
In the context of its popular meaning – which is the meaning ordinarily
assigned to it in common parlance – it simply refers to everybody who assists
the “actual” or “main perpetrator” or who in some way furthers the commission
of the crime by the latter, without differentiating between those who qualify as
perpetrators as explained above (ie, those whose conduct falls within the defin-
ition of the crime or who qualify as perpetrators by virtue of the common purpose
doctrine) and those who do not qualify as perpetrators. This popular meaning of
the word is accordingly so broad that it also covers what are technically called
perpetrators. In its popular sense the word simply refers indiscriminately to
everybody who assists in the commission of the crime.68
In its technical sense the word has the narrower meaning set out above in the
definition in paragraph 1. In terms of this narrower meaning, perpetrators or co-
perpetrators, that is, persons who comply in all respects with the definition of the
crime, are not included in the concept of “accomplice”. In the discussion of
accomplices in this book the word is always used in its (narrow) technical sense.
3 Requirements for liability as an accomplice For a person to be liable as
an accomplice the following requirements must be met:
(a) Accessory nature of liability Somebody else must have committed the
crime. An accomplice’s liability is of an accessory or dependent nature. Nobody
can be liable as an accomplice if somebody else is not liable as a perpetrator.69
This implies that a person cannot be an accomplice in respect of his own crime,
that is, in respect of a crime committed by himself as a perpetrator. Although it
is true that the accomplice’s liability stems from his own act and his own
________________________

67 This definition was quoted with apparent approval in Msomi 2010 2 SACR 173 (KZP)
176e–g.
68 Even the courts sometimes use the word “accomplice” in this popular sense, and the
vague expression socius criminis of which the courts used to be so fond (and regrettably
still sometimes use) bears more or less the same meaning.
69 Williams 1980 1 SA 60 (A) 63; Maxaba 1981 1 SA 1148 (A) 1155; Wannenburg 2007 1
SACR 27 (C) 32.
 PARTICIPATION AND ACCESSORIES AFTER THE FACT 267

culpability, this is not sufficient. Apart from his own act and culpability there
must have been an unlawful act committed by someone else which corresponded
with the definitional elements of the relevant crime, and was accompanied by
the required culpability.70
The perpetrator need not be tried and convicted.71 It is sufficient that some-
body else committed the crime as perpetrator, even though the police cannot
find him, or he has in the meantime become mentally ill, or has turned state
witness. There seems to be no reason why a person should not also be guilty as
an accomplice to the attempted commission of a crime, if the crime which the
perpetrator set out to commit has not been completed.72
If the “perpetrator” cannot be convicted because, for example, he lacked
criminal capacity at the time of the commission of the act, or “acted” involun-
tarily or was mistaken about a material requirement for the offence (which
means that he lacked culpability), nobody can be convicted as an accomplice to
the commission of such an “offence”.73 It is submitted that if the perpetrator has
been found not guilty on the merits of the case (as opposed to a technical
point), nobody can be convicted of having been an accomplice, because there
will then not be a crime in respect of which somebody can be an accomplice.
(b) Act or omission which furthers the crime In order to be guilty as an
accomplice, a person must commit an act which amounts to a furthering of the
crime committed by somebody else. X furthers or promotes the commission of
the crime if, for example, he facilitates, aids or encourages it, gives advice or
orders it to be committed.74 The act may also consist in making it possible for
another (the perpetrator) to commit a crime by, for example, placing one’s
home or property at another’s disposal,75 by acting as interpreter for the per-
petrator if he buys or sells illicit goods,76 by transporting him to the scene of the
crime, or by assisting him to hide things which he is not allowed to possess.
________________________

70 There are different ways in which the liability of an accomplice may be regarded as acces-
sory in nature. According to a certain view, it is sufficient that somebody else committed
an unlawful act, even though he lacked culpability. See Van Oosten 1979 De Jure 346
359; Ellis 1983 De Jure 356 371; Labuschagne 1977 De Jure 310 316. However, one
would then no longer be speaking of an accomplice to a crime. According to the view
expressed in the text above, somebody else must have committed an act which conformed
to the definitional elements of the crime, which was unlawful and which was committed
with the requisite culpability.
71 Wannenburg 2007 1 SACR 27 (C) 32d. See the discussion by Rabie 1970 THRHR 244
254–256, Ellis 1983 De Jure 356 367–371 and Van Oosten 1979 De Jure 346, who has
serious reservations regarding this aspect of the requirement presently under discussion.
Of course, if the perpetrator has been found not guilty on the merits there is always the
possibility that the person who would otherwise have been charged with being an accom-
plice could be charged with, and convicted of, attempting to commit the particular crime.
72 Dettbarn 1930 CPD 188 191; De Wet and Swanepoel 198–199.
73 Rasool 1924 AD 44. Parry 1924 AD 401. In Vanmali 1975 1 SA 17 (N) 23 the court
relied on Parry as authority for the proposition that “a socius can himself be found guilty
even where the perpetrator of the acts charged is found to have been incapable, because
of insanity, of forming the necessary criminal intent”. This statement can only be endorsed
if by “socius” the court meant a perpetrator or co-perpetrator.
74 Quinta 1974 1 SA 544 (T) 547; Williams 1980 1 SA 60 (A) 63B–C; Saffier 2003 2 SACR
141 (SEC) 42c; Msomi 2010 2 SACR 173 (KZP) .
75 Jackelson 1920 AD 486; Wallace 1927 TPD 557; Wiese 1928 TPD 149.
76 Peerkhan and Lalloo 1906 TS 798.
268 CRIMINAL LAW

The assistance or furthering may be slight, but in accordance with general

principles there must be some act. An omission to act positively may qualify as
an act only if the person concerned has a legal duty to do something positive.77
Generally speaking, conduct such as the following is not sufficient to form
the basis for liability as an accomplice: (a) the mere failure by somebody who
knows that a crime is about to be committed to warn the police or the intended
victim;78 (b) the mere failure by somebody who knows that a crime has been
committed to notify the authorities about it;79 (c) to be merely a passive spec-
tator of the commission of a crime80 (unless the “spectator” has previously
agreed with the perpetrator that he will help him by standing by and assisting
him if necessary); and (d ) the mere approval of a crime after it has been com-
mitted.
Certain crimes, such as incest, bribery and corruption, of necessity require the
co-operation of somebody else. Whether both parties are perpetrators, or only
one of them, depends upon the definition of the particular crime and, in the case
of statutory offences, the intention of the legislature. The wording of a prohib-
ition may be such that both parties are guilty as perpetrators of separate crimes.
If it is not possible to charge each one as a perpetrator of a separate crime, the
one may be charged as an accomplice to the crime committed by the other as a
perpetrator.81 Thus the buyer of illicit goods may be charged as an accomplice
of the seller.82
If, however, it is clear that the one party is in fact a victim of the crime, it is
usually accepted that he cannot be charged as an accomplice. Thus if X has had
sexual intercourse with Y who is below the age of sixteen years with Y’s con-
sent, thereby committing “statutory rape”, the girl is deemed not to be an accom-
plice, even though she consented to intercourse, because the very purpose of
the prohibition is to protect her.83 For the same reason the victim of the crime of
extortion is not regarded as an accomplice.84
(c) Unlawfulness The act of furthering described above must be unlawful; in
other words, there must be no ground of justification for the act.

________________________

77 Shikuri 1939 AD 225 232–233, 239–240 (legal duty based on relationship of employer to
employee); Timol 1974 3 SA 233 (N) 235–236; Claasen 1979 4 SA 460 (ZS) 463–464;
A 1993 1 SACR 600 (A) 606h. Cf also the example mentioned in Williams 1980 1 SA 60
(A) 63 of the night-watchman who intentionally omits to sound the alarm because he con-
sciously associates himself with the commission of the crime. See also Mahlangu 1995 2
SACR 425 (T) 434–436, in which at least one of the three judges who heard the appeal
(MJ Strydom J) obiter expressed the opinion (434g) that there was a legal duty upon X,
an employee at a petrol service station, to warn his employer and owner of the service
station that he knows that the service station will be robbed, and that X’s omission to do
this constituted a ground upon which X may be convicted as an accomplice to the robbery
which was committed thereafter.
78 Mbande 1933 AD 382 392, but contrast Mahlangu supra.
79 Mbande supra; Williams 1980 1 SA 60 (A) 64F.
80 Mbande supra 392–393; Khoza 1982 3 SA 1019 (A) 1032H.
81 Ingham 1958 2 SA 37 (C); Kellner 1963 2 SA 435 (A).
82 Kellner supra 444–446.
83 W 1949 3 SA 772 (A).
84 Gokool 1965 3 SA 461 (N).
 PARTICIPATION AND ACCESSORIES AFTER THE FACT 269

(d ) Intention To be liable as an accomplice a person must intentionally fur-

ther the commission of a crime committed by somebody else.85 Negligence is
not sufficient. The shop assistant who simply forgets to close the shop window
properly is therefore not an accomplice in respect of the burglary which follows
as a result. He will be an accomplice only if, knowing that the burglary is plan-
ned, he intentionally omits to close the window properly in order to facilitate
the housebreaking. In such a case the housebreaker need not even be aware of
the shop assistant’s help. It is sufficient that the accomplice intentionally furthers
the crime; the perpetrator need not be aware of the accomplice’s assistance. In
other words, there need not be conscious co-operation between the two.86
The principles relating to intention as a requirement for accomplice liability
are the same as the principles governing the general requirement of intention in
criminal law: dolus eventualis is therefore sufficient.87
4 Impossibility of being an accomplice to murder It is necessary briefly to
discuss the question of whether somebody may be an accomplice to murder.
For a person to be an accomplice to murder, he would intentionally have to fur-
ther somebody else’s commission of the crime without his own conduct qualify-
ing as a co-cause of the death. If his conduct is a co-cause of the death, he is a
co-perpetrator, since his conduct then falls squarely within the definition of
murder. The crucial question is simply: is it possible to further the victim’s death
without simultaneously also causing it?
The answer to this question would seem to be in the negative, but in Wil-
liams88 the Appellate Division, in a decision which is in sharp contrast with
previous decisions of the courts, not only accepted that a person may be an
accomplice to murder but also held that one of the accused was guilty as an
accomplice to murder. With respect, this finding is wrong, because it is clear that
the conduct of the person convicted as an accomplice was in fact a co-cause of
the death, and he should therefore have been convicted as a co-perpetrator. In
this case the facts were as follows: Z and X were members of the same gang. Z,
the accused who was convicted of being an accomplice only, saw X stab Y with
a knife. He then grabbed Y by the neck. When he saw another member of the
gang, W, charge at Y with the neck of a broken bottle, he did not check him but
continued to hold Y in such a way that W could strike at him with the broken
bottle. This conduct was a co-cause of death, and Z should therefore not have
been convicted as an accomplice but as a co-perpetrator. The court itself ex-
plicitly admitted that there was a causal nexus between the “accomplice’s”
assistance and the commission of the murder.89
________________________

85 Tshwape 1964 4 SA 327 (C) 333; Quinta 1974 1 SA 544 (T) 547A; Vanmali 1975 1 SA
17 (N) 23.
86 Ohlenschlager 1992 1 SACR 695 (T) 768g–h.
87 Kazi 1963 4 SA 742 (W) 749–750.
88 1980 1 SA 60 (A), discussed critically by Whiting 1980 SALJ 199; Van Oosten 1980 De
Jure 156 and Snyman 1980 TSAR 188.
89 At 64D–E. In Khoza 1982 3 SA 1019 (A) two of the five judges of appeal who heard the
appeal accepted that a person could be convicted as an accomplice to murder. See the judg-
ment of Corbett JA at 1033–1034 and that of Botha AJA at 1054. However, not one of
these judges convicted the appellant as an accomplice to murder. According to Corbett JA
[continued]
270 CRIMINAL LAW

Whether it is possible to be an accomplice to a crime defined in terms of

causation, such as murder, and related questions dealing with the interpretation
of certain statements in Williams, have been debated in legal literature. Certain
writers are of the opinion that it is impossible to be an accomplice to murder.90
Others, again, accept the possibility of this form of liability.91
If a person may indeed be convicted as an accomplice to murder, one would
expect a court to do so at least where a person has committed some act in
furtherance of the death but it cannot be proved that there was a causal connec-
tion between the act and Y’s death. This is exactly what happened in Safatsa.92
In this case, six accused were charged with murder. The contribution of some
of them to Y’s death was extremely limited. They were part of a crowd of about
a hundred people who stoned Y to death. The Appellate Division found that
they acted with a common purpose to kill, but that a causal connection between
the act of each individual accused and Y’s death had not been proved.93 The
court nevertheless convicted them all of murder, that is, as co-perpetrators. If it
is indeed possible to be an accomplice to murder, why did the court not convict
at least some of the accused in this case as accomplices (as opposed to co-
perpetrators)? The judgment in Safatsa has effectively excluded the possibility
of somebody’s being convicted as an accomplice to murder if it is proved that
he was a party to a common purpose to kill and that death resulted from the
combined conduct of the group of people acting with that common purpose.
It is submitted that it is impossible for somebody to be an accomplice to
murder. One cannot “further” Y’s death without “causally furthering” it. If there
is indeed a difference between “furthering the death causally” and “furthering
the death without causing it”, that difference is so slight and artificial as to lead
to grave difficulties in its application. The assumption that a person may be an
accomplice to murder creates only an endless series of problems which blurs a
clear picture of the general principles of criminal law.
5 Punishment The same punishment may be imposed on an accomplice as
on the perpetrator.94 This does not mean that a court may not in certain circum-
stances impose a heavier or a lighter sentence on an accomplice than on the
perpetrator, but only that a court is bound by the maximum and minimum
sentences which may be prescribed for a particular crime. The extent to which
the accomplice has furthered the commission of the crime plays an important
role in determining the extent of punishment.95

________________________

he was guilty of attempted murder and according to Botha AJA he was guilty of being a
perpetrator of the murder. The remarks of Corbett JA and Botha AJA regarding accom-
plices to murder are therefore obiter.
90 De Wet and Swanepoel 201; 192 fn 86; Whiting 1980 SALJ 199 201; 1986 SALJ 38 54;
Kok 1985 SACC 56 ff.
91 Van Oosten 1979 De Jure 346 355, 1980 De Jure 156 160.
92 1988 1 SA 868 (A).
93 At 894 F–G.
94 Jackelson 1920 AD 486 490; Kock 1988 1 SA 37 (A); Kimberley 2004 2 SACR 38 (E)
41a–b.
95 X 1974 1 SA 344 (RA) 348D–G.
 PARTICIPATION AND ACCESSORIES AFTER THE FACT 271

D ACCESSORIES AFTER THE FACT

1 General An accessory after the fact is not a participant, for he neither
causes the crime nor furthers it. He comes into the picture only after the crime
has been completed, and then helps a perpetrator or an accomplice to escape
justice. A good example of an accessory after the fact is a person who for the
first time hears about the murder after it has already been completed, and then
helps the real murderer by throwing the corpse into a river with a stone tied
around its neck.96

2 Definition A person is an accessory after the fact to the commission of

a crime if, after the completion of a crime, he unlawfully and intentionally
engages in conduct intended to enable the perpetrator of, or the accomplice
in, the crime to evade liability for his crime, or to facilitate such a person’s
evasion of liability.97

3 Assisting the perpetrator to evade liability An accessory after the fact

protects either the (co-)perpetrator or the accomplice. A person qualifies as an
accessory after the fact only if his act takes place after the crime in respect of
which he is an accessory after the fact has already been completed. If X’s act of
assisting the perpetrator takes place at a time when the crime is still in the
process of being committed, he may qualify as a co-perpetrator or accomplice.
X must commit some act whereby he enables a person who has committed a
crime to evade liability. An omission may lead to liability if there is a legal
duty upon a person to act positively.98 According to general principles mere
passivity is not sufficient to render a person liable as accessory after the fact;
more particularly, the mere omission to report a crime that has been committed
to the police cannot be construed as conduct amounting to being an accessory
after the fact to the crime.99 Thus X does not commit the crime if he is a witness
to the commission of a crime to which he is not a party, and thereafter simply
quietly walks away. The position is different if X is a policeman: an omission
by him to report the commission of a crime amounts to being an accessory after
the fact, provided X intended to assist the actual perpetrator to escape liability.100
________________________

96 Terblanche 2011 1 SACR 77 (EC) (X assisted Y, the real murderer, to drag Y’s body
from one place to another in order to conceal it); Scott-Crosby 2008 1 SACR 223
(SCA) par 29 (X threw Y’s corpse into a lion cage).
97 Khoza 1982 3 SA 1019 (A) 1040C–D; Velumurugen 1985 2 SA 437 (D) 447D; Barnes
1990 2 SACR 485 (N) 493e; Nkosi 1991 2 SACR 194 (A) 201a–d; Madlala 1992 1
SACR 473 (N) 476a–b; especially Morgan 1993 2 SACR 134 (A) 174d–e (per Corbett
CJ); Williams 1998 2 SACR 191 (SCA) 193c–e; Nooroodien 1998 2 SACR 510 (NC)
526.
98 There is a legal duty on a police officer not to remain passive if a crime is, or has been,
committed in his presence; an omission to act positively may lead to liability as an
accessory after the fact – Barnes 1990 2 SACR 485 (N) 493. Contra Madlala 1992 1
SACR 473 (N) 465–476. It would seem that X in this case escaped liability because
he lacked intention, and more particularly, knowledge of the commission of the main
crime.
99 Barnes 1990 2 SACR 485 (N) 493; Phallo 1999 2 SACR 558 (SCA) 567c–d.
100 Phakane 2008 1 SACR 518 (SCA) par 31.
272 CRIMINAL LAW

Mere approval or ratification of a crime after it has been committed is not

sufficient.101
In Jonathan102 three of the five judges of appeal held that the mere fact that X
made a false statement when asked to plead in court and in a subsequent declar-
ation before a magistrate, was sufficient conduct to render him guilty as an
accessory after the fact.103 In his statement he attempted to protect the real
perpetrator of the crime so that the latter might not be convicted. The remaining
two judges of appeal, however, held that the making of such statements was
insufficient conduct to render X guilty as an accessory after the fact. They
described the idea of an accused being found guilty of a crime, a necessary
ingredient of which was committed by him only after he had already appeared
in court on a charge to which he had pleaded not guilty, as strange, unaccept-
able, and in conflict with the elementary principles of the administration of just-
ice.104 It is submitted, with respect, that the view of the minority of the court is
correct. Such conduct at most amounts to perjury or defeating or obstructing the
course of justice (or an attempt to commit this crime).
It is not required that the protection or assistance given should be successful.
A person is therefore guilty as accessory after the fact even though the corpse is
discovered by the police and taken out of the river and the murderer is brought
to justice.105 One may also be an accessory after the fact to the attempted
commission of a crime. If Z assaults Y with the intention of killing him and X,
aware of Z’s intention, afterwards helps him to escape but Y survives the attack,
X is an accessory after the fact to attempted murder. (The murder is completed
only if Y dies.)106
4 Intention The accessory after the fact must render his assistance intention-
ally. He must know that the person he is helping committed the crime.107 He
must furthermore intend to enable the perpetrator of or accomplice in the
offence to evade liability for his offence, or to facilitate such a person’s evasion
of liability. Dolus eventualis may suffice.108 Although intention is required for
the crime of being an accessory after the fact, it is not required that the person
who is helped by the accessory after the fact should have committed a crime
intentionally. Thus, one can also be an accessory after the fact in respect of a
crime requiring negligence, such as culpable homicide.109
5 Accessory character of liability The liability of an accessory after the fact,
like that of an accomplice, is accessory in character. There can only be an acces-
sory after the fact if somebody else has committed the crime as perpetrator. The
________________________

101 For this reason the decision in Jongani 1937 AD 400 seems to be incorrect.
102 1987 1 SA 633 (A).
103 See the judgment of Jansen JA (with whom Joubert JA and Eloff AJA concurred) at
645B–F.
104 See the judgment of Botha JA (with whom Hoexter JA concurred) at 657C–F.
105 Pather 1927 TPD 800.
106 Lambert 1927 SWA 32; Shorty 1950 SR 280.
107 Mlooi 1925 AD 131 148; Maree 1964 4 SA 545 (O) 557.
108 Jonathan 1987 1 SA 633 (A) 643I–J; Pakane 2008 1 SACR 518 (SCA) par 30.
109 Velumurugen 1985 2 SA 437 (D).
 PARTICIPATION AND ACCESSORIES AFTER THE FACT 273

result is that one cannot be an accessory after the fact to a crime committed by
oneself.110
This leads to problems in the following type of case: A, B and C are charged
with murder. There is no doubt that one or two of them committed it, but it is
impossible to establish which of them did so. After the murder they all helped
to conceal the body. If none of them can be convicted of murder, can all three
of them nevertheless be convicted as accessories after the fact? It is submitted
not. Because it cannot be established who committed the murder, none of them
may be found guilty of murder. Because none of them is guilty of murder, it
would seem to follow that none of them may be convicted as accessory after
the fact, for then the possibility cannot be excluded of a person’s being convict-
ed as an accessory after the fact in respect of a crime committed by himself.
The courts, however, have decided that all three of the accused in a case of
this nature can be convicted as accessories after the fact. In Gani111 the Appel-
late Division was confronted with precisely this problem. It was held that all
three of the accused were guilty as accessories after the fact on the strength of
the following argument: the actual (unidentifiable) murderer assisted the other
two accused, who were accessories after the fact, in the commission of their
acts. In so doing, he participated in the crime of being accessory after the fact to
the murder and therefore became an accessory after the fact himself.
The problem with this argument is that the court failed to take account of the
fact that the person whom, for the purposes of its argument, it regarded as a
murderer had in fact been found not guilty of the murder. There was therefore
no perpetrator in respect of whose act another accused might be an accessory
after the fact, since all three of the accused had been found not guilty of mur-
der. The effect of the judgment remains that the actual murderer is convicted of
being an accessory after the fact in respect of a murder which he might have
committed himself. Apart from this, the court’s reasoning is fallacious in so far
as it assumes that a person who participates in another’s crime – in other words,
who is an accomplice – may be convicted of the same crime (namely being an
accessory after the fact) as the one which he furthers. An accomplice should not
be found guilty as a perpetrator, but as an accomplice, otherwise the whole pur-
pose of drawing the distinction between perpetrators and accomplices is frus-
trated. It follows, therefore, that in principle not one of the three accused should
have been convicted of being an accessory after the fact.
In Jonathan112 the Appellate Division was confronted with a set of facts of
the same nature. After considering the objections to Gani ’s case, it held, quite
surprisingly, that it was not prepared to depart from the reasoning and con-
clusion reached in that case. The conclusions reached in Gani and Jonathan
remain inconsistent with principle. One has the feeling that in both these cases,
the overriding motivation for the conclusions reached by the court is simply the
consideration that it does not seem fair to acquit all three accused of being even
________________________

110 Gani 1957 2 SA 212 (A) 220A; Jonathan 1987 1 SA 633 (A) 643A.
111 Supra 220–222, especially 221D–E. Gani ’s case was followed in Naidoo 1966 1 PH
H210 (A); D 1966 4 SA 267 (D) 271G.
112 1987 1 SA 633 (A). Jonathan’s case was followed in Munonjo 1990 1 SACR 360 (A)
364; Phallo 1999 2 SACR 558 (SCA) 565–566.
274 CRIMINAL LAW

accessories after the fact. The rule adopted in these cases should be regarded as
an exception, based on policy considerations, to the rule that one cannot be an
accessory after the fact to a crime committed by oneself. The whole problem
which faced the court in Gani and Jonathan could have been solved by convict-
ing all three of the accused of defeating or obstructing the course of justice (or
attempting to do so).
If the person who helps the perpetrator after the commission of the offence
agrees with him before its commission to assist him thereafter, the picture
changes completely. He may then be a perpetrator himself, if his conduct, culp-
ability and personal qualities accord with the definition of the crime, or else he
may be an accomplice.113
6 Reason for existence questionable In conclusion it may be asked whether
the crime of being an accessory after the fact is really necessary in our law. It is
submitted that it is not. If one accepts the narrower definition of this crime, as
our courts have apparently done now, it is completely overlapped by the crime
known as defeating or obstructing the course of justice.114 Even the Appellate
Division has admitted this.115 Our criminal law will not be the poorer if the
crime of being an accessory after the fact disappears.
7 Punishment In terms of section 257 of the Criminal Procedure Act the
punishment of an accessory after the fact may not exceed the punishment which
may be imposed in respect of the crime committed by the perpetrator. As the
accessory after the fact did not participate in the actual crime, he is usually
sentenced more leniently than the perpetrator.

________________________

113 Maserow 1942 AD 164 170 (point 2); Von Elling 1945 AD 234 240–241.
114 On this crime, see infra X B.
115 Gani supra 220A.
 CHAPTER

VIII

ATTEMPT, CONSPIRACY
AND INCITEMENT

A GENERAL
1 Introduction Thus far only the requirements for liability for the completed
crime have been considered. However, the law forbids not only the completed
crime, but also certain preceding forms of conduct directed at the commission of
a crime, namely attempt, conspiracy and incitement to commit a crime. If the pro-
spective criminal is caught at a stage when her conduct as yet constitutes no more
than an attempt to commit the crime, or a conspiracy or an incitement to com-
mit it, she may be charged with and convicted of attempt, conspiracy or incite-
ment to commit the crime. These three crimes are known as “inchoate crimes”.
They may also be described as incomplete or anticipatory crimes, because they
are forms of conduct performed in anticipation of the commission of the main
crime. Attempt, conspiracy and incitement are all substantive crimes, not rules
governing liability, like the rules relating to unlawfulness and culpability.
2 Rationale If one simply applies the retributive theory of punishment, it is
difficult to see why these inchoate crimes are punishable: there can only be retri-
bution in respect of harm done, and in these cases no harm has been done as yet.
The reason for punishing this anticipatory conduct must be found rather in the
relative theories of punishment, and more especially in the preventive and re-
formative theories. The police are better able to uphold the law and protect the
community if they may apprehend criminals who have as yet committed only acts
which normally precede the commission of a crime. The maintenance of law and
order would suffer seriously if the police were powerless to intervene when they
saw people preparing to commit crimes, but could take action against them only
once the harm had been done.
The reason for the application of the reformative theory in this connection is
that people who commit these anticipatory crimes are as much of a danger to
society as those who have completed a crime, and therefore as much in need of
reformative treatment. It should be noted that the difference between a com-
pleted and an uncompleted crime often depends on factors beyond X’s control,
as where X places a bomb in a public place but the bomb fails to detonate
because the police discover it timeously. X’s intention and her need of reform
are the same whether the bomb explodes or not.
275
276 CRIMINAL LAW

B ATTEMPT
1 Prohibition of attempt Attempts to commit common-law crimes are
punishable in terms of common law.1 Attempts to commit statutory crimes
ought, according to general principles, also to be punishable in terms of com-
mon law. In an apparent attempt to eliminate any doubts about the punishability
of attempts to commit statutory crimes, section 15(1) of the Riotous Assemblies
and Criminal Law Amendment Act 27 of 1914 was promulgated. This has in
the meantime been superseded by section 18(1) of the Riotous Assemblies Act
17 of 1956. According to this section, any person “who attempts to commit any
offence against a statute or a statutory regulation shall be guilty of an offence
and, if no punishment is expressly provided thereby for such an attempt, be
liable on conviction to the punishment to which a person convicted of actually
committing the offence would be liable”.2
2 In search of a criterion Mere intention to commit a crime is not punish-
able. Nobody can be punished for her thoughts. A person can be liable only once
she has committed an act, in other words, once her resolve to commit a crime
has manifested itself in some outward conduct.3 However, it is not any outward
conduct which qualifies as a punishable attempt. If X means to commit murder,
she is not guilty of attempted murder the moment she buys the revolver, and if
she means to commit arson she is not guilty of attempted arson the moment she
buys a box of matches.
On the other hand, it stands to reason that there does not have to be a com-
pleted crime before a person may be guilty of attempt. Somewhere between the
first outward manifestation of her intention and the completed crime there is a
boundary which X must cross before she is guilty of attempt. How to formulate
this boundary in terms of a general rule is one of the most difficult problems in
criminal law. A principle which seems to operate satisfactorily in one factual
situation often fails to afford a satisfactory criterion in another.
A number of theories or tests have been devised in attempts to find a valid
criterion to determine what conduct constitutes a punishable attempt. The cri-
terion which has crystallised in our case law is the following: a court must
enquire whether or not X’s conduct went further than mere acts of preparation
for the commission of the crime, and whether they in fact amounted to acts of
execution.
3 Summary of rules relating to attempt The general rules of our law re-
lating to the requirements for punishing an attempt to commit a crime may be
summarised as follows:
________________________

1 Matthaeus Prol 1 5, 48 5 3 10; Voet 48 5 17, 48 8 4; Moorman Inl 1 13, 14; Huber HR 6 1
4–9; Damhouder 67 9 and 74 14, 15; Van Leeuwen Cens For 5 1 5.
2 The formulation of s 18(1) of Act 17 of 1956 is not very clear. What about offences not
contained in “a statute or a statutory regulation” but in, eg, a provincial statutory pro-
vision or a municipal by-law? Is an attempt to commit such offences also punishable? It
is submitted that it is inconceivable that the legislature could have intended that attempts
to commit the latter offences should not be punishable. This is also the opinion of De Wet
and Swanepoel 168 fn 25.
3 Nlhovo 1921 AD 485 495; Davies 1956 3 SA 52 (A) 75; Katz 1959 3 SA 408 (C) 419.
 ATTEMPT, CONSPIRACY AND INCITEMENT 277

1 A person is guilty of attempting to commit a crime if, intending to

commit that crime, she unlawfully engages in conduct that is not merely
preparatory but has reached at least the commencement of the execution
of the intended crime.4
2 A person is guilty of attempting to commit a crime even though:
(a) the commission of the crime is impossible, if it would have been pos-
sible in the factual circumstances which she believes exist or will exist
at the relevant time;5
(b) she voluntarily withdraws from its commission after her conduct has
reached the commencement of the execution of the intended crime.6

In the discussion which follows, these principles will be explained and discussed.
Paragraphs 6 and 7 deal with rule 1 above, paragraphs 8 and 9 deal with rule
2(a) above, and paragraphs 10 and 11 deal with rule 2(b) above.
4 Factual situations In legal literature certain terms have been devised to
describe the factual situations which one encounters in cases of attempt:
• Completed attempt This is where X has done everything she can to commit
the crime, but for some reason the crime is not completed, as where X shoots
at Y but misses.
• Interrupted attempt This is where X’s actions are interrupted, so that the
crime cannot be completed. For example, X, meaning to commit arson, pours
petrol onto a wooden floor, but is apprehended by a police official just before
she strikes a match.
• Attempt to commit the impossible This is where it is impossible for X to
commit or complete the crime, either because the means she uses cannot
bring about the desired result (as where X, intending to murder Y, adminis-
ters sugar to her in the mistaken belief that it is poison) or because it is im-
possible to commit the crime in respect of the particular object of her actions
(as where X, intending to murder Y while she is asleep in bed, shoots her in
the head but Y has in fact died of a heart attack an hour before).
• Voluntary withdrawal This is where X of her own accord abandons her
criminal plan of action, as where, after putting poison into Y’s porridge but
before giving it to Y, she has second thoughts and decides to throw the
porridge away.
Each of these factual situations will be discussed separately below.
5 Subjective and objective approaches The various theories relating to
attempt may be divided into two groups, namely the subjective and objective
theories. The subjective theories place all the emphasis on X’s intention. If she
converts her evil thoughts into deeds by the slightest outward conduct, this is
sufficient to render her liable for attempt. According to the objective theories,

________________________

4 Agliotti 2011 2 SACR 437 (GSJ) par 10.2.

5 Agliotti supra par 10.2.
6 Agliotti supra par 10.2.
278 CRIMINAL LAW

mere intention is insufficient. There must be something more, which must neces-
sarily be an objective or external requirement; thus it may be required that the
act must be dangerous or harmful.
Neither a purely subjective nor a purely objective approach is consistently
applied to all cases of attempt in South Africa. In determining liability for
attempt to commit the impossible our law has adopted a subjective approach,7
whereas liability for interrupted attempt is determined by means of a test which
is in principle objective (it distinguishes between acts of preparation and acts of
consummation).8 An objective criterion is also applied by the courts if X volun-
tarily withdraws from her criminal scheme.9
6 Completed attempt As a general rule it may be assumed that if X has
done everything she set out to do in order to commit the crime, but the crime is
not completed, she is then guilty of attempt. Thus, if X shoots at Y, but misses
her, or the bullet hits Y but only wounds her, X is guilty of attempted murder,
and if X sends Y a letter containing a deliberate misrepresentation or forbidden
information and the police intercept the letter in the post, X is guilty of attempt-
ing to commit the relevant crime, for example fraud.10 If X poisons Y’s food,
and Y unexpectedly does not eat it, or eats it but is saved by timeous medical
treatment, X is guilty of attempt.11
In Nlhovo12 X handed poison to Z and asked him to put it into Y’s food. Z,
however, gave it to Y personally, and the two of them handed it over to the
police. It was held that X was not guilty of attempt to commit the crime of
administering poison, because his conduct was not sufficiently proximate to the
completed crime. It is questionable whether this case was correctly decided.
The moment X had done everything to set in motion the causal chain of events
which would lead to Y’s death, his conduct ought to have qualified as a punish-
able attempt. Just as X’s liability for the completed murder is not dependent
upon whether he killed Y with his own hands or used somebody else to do his
dirty work for him, his liability for attempt does not depend upon whether he
put the poison into Y’s food with his own hands or used an intermediary to do
it for him. X merely employed ineffective means to attain his goal. As will be
shown in the discussion below of attempt to commit the impossible,13 a person
may be convicted of attempt even though the method she used was ineffectual.14
The judgment in Mlambo15 is more acceptable. In this case X gave money to
Z to buy him (X) dagga, but X was arrested before Z could obtain the dagga. X
was convicted of attempting to possess dagga.

________________________

7 Infra par 8.
8 Infra par 7.
9 Infra par 10.
10 Lionda 1944 AD 348; Laurence 1975 4 SA 825 (A).
11 Nlhovo 1921 AD 485 492. For more cases of completed attempt, see Pachai 1962 4 SA
246 (T); Gcabashe 1997 2 SACR 106 (N).
12 1921 AD 485.
13 Infra par 8.
14 In Gcabashe supra it was held that the judgments in Nlhovo supra and Laurence supra
were irreconcilable, and that preference should be given to the judgment in Laurence.
15 1986 4 SA 34 (E).
 ATTEMPT, CONSPIRACY AND INCITEMENT 279

There is no rule that prescribes that X will be guilty of attempt only if she has
taken the last step possible in the execution of the crime.16 If X decides to kill Y
by poisoning her slowly over a long period, she is guilty of attempt even on the
first occasion when she puts poison into Y’s food.17
Attempt to commit a crime which consists in being in possession of a certain
type of article (such as dagga) is possible,18 but not attempt to commit a crime
consisting in “being found in possession”,19 because X would then have to have
the intention “to be discovered by the police while she is committing the crime”.
If X, who knows that he is HIV-positive, rapes a woman, Y, in the knowledge
that by so doing he will transfer the deadly virus to Y, he commits attempted
murder, if his act becomes known while Y is still alive.20 If his act becomes
known after Y has already died and it is clear that the deadly virus transferred
to Y by X was the cause of death, he may be convicted of murder.
7 Interrupted attempt Most reported cases of attempt deal with this factual
situation. Here X’s activities are interrupted before she can succeed in com-
pleting the crime. Our courts introduced an objective criterion for differentiating
between punishable and non-punishable attempt in these types of cases. Accord-
ing to this criterion a distinction is drawn between an act of preparation and one
of execution or consummation. If what X did was merely a preparation for the
crime, there is no attempt. If, however, her acts were more than acts of prepar-
ation and were in fact acts of consummation, she is guilty of attempt.
The leading case dealing with this type of situation is Schoombie.21 In this
case X went to a shop in the early hours of the morning and poured petrol
around and underneath the door, so that it ran into the shop. He placed a tin of
inflammable material against the door, but his whole scheme was thwarted
when at that moment a policeman appeared. The Appellate Division confirmed
his conviction of attempted arson and in the judgment authoritatively confirmed
that the test to be applied in such cases was to distinguish between acts of
preparation and acts of consummation.
The disadvantage of this test is its vagueness. In applying it, a court has to
distinguish between “the end of the beginning and the beginning of the end”.
Each factual situation is different and the test as applied to one set of facts is no
criterion in a different factual situation. For this reason an analysis of all the
cases in which a court has had to draw this distinction will serve no purpose.
Each case must be decided primarily on its own merits. In Katz22 it was stated
that “a value judgment of a practical nature is to be brought to bear upon each
set of facts as it arises for consideration”, and in Du Plessis23 the Appellate
________________________

16 Van Zyl 1942 TPD 291 296; Thabeta 1948 3 SA 218 (T) 221–222.
17 Van Zyl supra 296; B 1958 1 SA 199 (A) 203.
18 Ndlovu 1982 2 SA 202 (T) 206D–E; Mlambo 1986 4 SA 34 (E) 41–42; Dube 1994 2
SACR 130 (N) 137h–i.
19 Ndlovu supra 206C–D; Magxwalisa 1984 2 SA 314 (N) 321–322.
20 Nyalungu 2013 2 SACR 99 (T).
21 1945 AD 541 547. The test enunciated in Schoombie was confirmed by the Appellate
Division in Du Plessis 1981 3 SA 382 (A) 399–400.
22 1959 3 SA 408 (C) 422.
23 1981 3 SA 382 (A) 399–400.
280 CRIMINAL LAW

Division stated that whether or not there was already an act of consummation is
a factual question.
The following factors are material when it has to be decided whether there
was a “commencement of the consummation”: X’s physical proximity to the
object or the projected scene of the crime; the interval of time between the
moment when X was caught and the expected completion of the crime; the
question as to what the natural course of events was likely to have been and the
question whether X at all times remained in control of the course of events.24
Whether X still had the time or the opportunity to change her mind about
committing the crime may play a role, but is not a decisive factor.25
The following are some examples of how our courts distinguish between an
act of preparation (in which case X is not guilty of attempt) and an act of con-
summation (in which case X is guilty of attempt):
(a) Mere acts of preparation (ie, cases in which X is not guilty of attempt):
X merely prepares the poison which she means to administer to Y later when
she is apprehended;26 a burglar (Y) asks X to buy stolen clothes from her (Y),
but X has had time only to look at the clothes when a policeman arrests her;27
X, trying to obtain possession of explosives which she is not allowed to pos-
sess, travels to a place where the explosives are concealed but is arrested hun-
dreds of kilometres from the place of concealment;28 X, in an attempt to steal a
car, walks late at night, armed with a screw-driver, to a car, stands next to the
car, directs a flashlight at the car, but is apprehended by a policeman before she
is able to do anything to the car;29 X, in an attempt to steal goods in somebody
else’s house, has only opened the cupboards and thrown the contents thereof on
the floor, when she was caught in the act;30 X, in an attempt to commit house-
breaking, has only stood outside a window and moved the curtains, when she is
apprehended.31
(b) Acts of consummation (ie, cases in which X qualifies to be convicted of
attempt): X, trying to escape from custody, breaks the glass and wooden frame
of the window in her cell;32 X, trying to break into a house, puts a key into a

________________________

24 Van Zyl 1942 TPD 291 296–297; Schoombie 1945 AD 541 548; Katz 1959 3 SA 408 (C)
423.
25 In Schoombie supra 547–548 it was said that “the last series of acts which would constitute
a continuous operation, unbroken by intervals of time which might give an opportunity
for reconsideration” forms part of the consummation, but in B 1958 1 SA 199 (A) 203
Schreiner JA unjustifiably watered down this useful criterion. Schreiner JA’s example of
gradual poisoning is an exceptional set of facts, and ought not to derogate from the gen-
eral rule. It is submitted that one of the fundamental reasons for distinguishing between
acts of preparation and acts of consummation is to make allowance for the prospective
wrongdoer who decides not to continue with her crime.
26 Sharpe 1903 TS 868 873.
27 Croucamp 1949 1 SA 377 (A).
28 Magxwalisa 1984 2 SA 314 (N) 322.
29 Josephus 1991 2 SACR 347 (C).
30 Newman 1998 1 SACR 94 (C). It is difficult to agree with the court’s finding that there
was no act of consummation.
31 Hlongwane 1992 2 SACR 484 (N).
32 Chipangu 1939 AD 266.
 ATTEMPT, CONSPIRACY AND INCITEMENT 281

door;33 X, trying to commit arson, arranges inflammable materials and fuel inside
a building;34 X, trying to do business in a forbidden trade, posts a letter contain-
ing an offer;35 X, trying to rape Y, has as yet only assaulted her;36 X, trying to
steal from Y’s handbag, has only opened the handbag hoping the contents will
fall out;37 X, attempting to possess dagga, drives to a place in a bush where an
associate has left a sack of dagga for her, leaves the car and walks to the sack.38
8 Attempt to commit the impossible In this form of attempt, although X’s
act is no longer merely an act of preparation but has in fact passed the boundary
line demarcating the “commencement of the consummation”, it is impossible
for X to commit the crime. The impossibility may be due to any one or more of
the following factors:
Firstly, X uses the wrong means to achieve her aim, as where X wants to
poison Y, but instead of throwing the correct poison into Y’s drink, she mis-
takenly throws a harmless substance into the drink. This type of impossibility is
referred to as impossibility of the means.
Secondly, X does not have the qualities required in the definition of the crime
to commit the crime. A crime may, for example, be so defined that it can be
committed by a licence holder only; X, erroneously believing that she is the
licence holder, commits an act which would have been a crime had she been the
licence holder. This type of impossibility is referred to as impossibility of the
subject.
Thirdly, the object in respect of which the act is committed is not such as
envisaged in the definition of the crime. For instance, X, intending to kill Y,
shoots at Y while Y is lying in her bed. Unknown to X, Y has already died from
a heart attack some minutes before the shot was fired. This type of impossibil-
ity is known as impossibility of the object.39
Before 1956 there was no certainty in our law as to whether attempt to com-
mit the impossible was punishable or not. In 1956 the matter was settled by the
Appellate Division in Davies.40 In this case it had to be decided whether X was
guilty of attempt to commit abortion if the foetus which X caused to be aborted
were already dead. (The then crime of abortion could be committed in respect
of a live foetus only.) The Appellate Division found in favour of the subjective
approach and held that X was guilty of attempt.41 It held that X would have
________________________

33 Mtetwa 1930 NPD 285.

34 Vilinsky 1932 OPD 218.
35 Lionda 1944 AD 348.
36 B 1958 1 SA 199 (A) 204; W 1976 1 SA 1 (A).
37 Agmat 1965 2 SA 874 (C).
38 Ndlovu 1982 2 SA 202 (T) 207.
39 Or X shoots at Y, who is in an armoured vehicle whose armour is so strong that the
bullets cannot pierce it, as happened in Ngcamu 2011 1 SACR 1 (SCA) par 19.
40 1956 3 SA 52 (A).
41 At 61, 64, 78. Steyn JA dissented. Davies was applied inter alia in W 1976 1 SA 1 (A) (X
was convicted of attempted rape after having had intercourse with a woman whom he
believed to be alive while she was in fact already dead, in circumstances in which he
knew that she would not have consented to intercourse); Naidoo 1977 2 SA 123 (N)
128C–D (but contrast Perera 1978 3 SA 523 (T)); Palmos 1979 2 SA 82 (A); Ndlovu
1982 2 SA 202 (T) 207F–G (attempt to possess dagga, which proved to be impossible
[continued]
282 CRIMINAL LAW

been guilty of attempt even if the woman had not been pregnant provided, of
course, that X had believed that she was pregnant and had performed some act
intending to bring about an abortion.42
In Davies the Appellate Division held that it did not matter whether the im-
possibility resided in the means or in the object: in both cases X was guilty of
attempt.43 Neither in Davies nor, as far as is known, in any other case did the
question arise whether it would make any difference if the impossibility resided
in the subject. It is submitted that there can hardly be any doubt that attempt to
commit a crime in such circumstances is equally punishable.
The question arises whether the wide scope of criminal liability for attempt to
commit the impossible should not be limited in some way. A consistent appli-
cation of the strictly subjective approach could in extreme cases lead to ludicrous
results. In Davies the example was mentioned of the prospective murderer who
uses a water pistol to shoot at a life-sized stuffed scarecrow resembling a human
being.44 According to this judgment it must be assumed that this is attempted
murder. But what about the superstitious person who believes that she can kill
her enemy by prayers or incantations? Following a similar distinction made in
German and American law, it is submitted that in cases such as these, where an
ordinary person would see no danger to anybody, the “attempt” is too far-
fetched to be punishable.45 The mere fact that, as far as is known, there has
never been a reported case of what may be termed “superstitious attempt” in all
probability proves that our prosecuting authorities do not regard such cases as
punishable.
9 Putative crime In Davies Schreiner JA formulated two exceptions to the
general rule that attempt to commit the impossible is punishable.46 The easier of
the two to understand is that a statutory crime may conceivably be so defined as
to exclude liability for attempt to commit it in circumstances in which it would
be impossible to achieve the criminal aim.47
The other exception is somewhat more difficult to apply. It was formulated as
follows:48 “If what the accused was aiming to achieve was not a crime an
endeavour to achieve it could not, because by a mistake of law he thought that
his act was criminal, constitute an attempt to commit a crime.”
________________________

because a policeman was already sitting on the bags of dagga which X meant to take into
his possession); Ndlovu 1984 3 SA 23 (A) (murderous attack on somebody who was already
dead); Madikela 1994 1 SACR 37 (BA); Dube 1994 2 SACR 130 (N) 138–139.
42 At 64.
43 Ibid.
44 At 72G–H (“semelpop”).
45 La Fave 604 fn 81: “[H]uman laws are made, not to punish sin, but to prevent crime and
mischief.” Attempt is not punishable in these circumstances in German law (“irreale oder
abergläubische Versuch”), although attempt to commit the impossible is usually punish-
able. The act evokes sympathy with X rather than concern for any possible danger. See
Jescheck and Weigend 532–533; Schönke-Schröder n 13 ff ad s 23.
46 Davies 1956 3 SA 52 (A) 64.
47 The legislature may, in other words, create a crime and provide that attempt to commit
the crime is not punishable, even in situations in which it is impossible for X to commit
the prohibited act or cause the prohibited result.
48 Ibid.
 ATTEMPT, CONSPIRACY AND INCITEMENT 283

It is beyond doubt that this at least means that a putative crime is not punish-
able. A putative crime is a type of crime which does not exist, but which X
believes to exist. If X believes that the law regards certain conduct as a crime,
whereas it is not criminal, one may speak of a “putative crime”. (The word “puta-
tive” is derived from the Latin word putare, which means “to think”.) Adultery,
for example, is not a crime. If X commits adultery, mistakenly believing that
this type of conduct is a crime, she is, in terms of this exception to the rule, not
guilty of attempt. This type of conduct is not a crime in the eyes of the law.
This exception to the “rule in Davies” is, of course, very necessary, otherwise
it would be possible to seriously undermine the principle of legality by abusing
the rules relating to attempt in order to “create”, so to speak, new crimes. After
all, the limits of liability are determined by the objective rules of the law and
not by an individual’s conception of the content of the law. The unfounded
belief in the existence of a crime is simply a mirror image of a mistake about
the law. It is the reverse of the situation where X errs in not knowing that a
certain type of conduct is criminally punishable.
This exception (putative crime) operates if X is mistaken about the existence
of a crime or the legal nature of one of its definitional elements. She is, in other
words, mistaken about the abstract definition of the crime. If she is merely
mistaken about the facts, that is, one or more of the concrete circumstances of
the case, then she is guilty of attempt.
The difference may be explained by means of the following example: The
crime of theft cannot be committed in respect of a res derelicta, that is, a thing
abandoned by its owner with the intention of getting rid of it. X, a tramp, sees
an old mattress lying on the pavement. The mattress was left by its owner next
to her garbage container in the hope that the garbage removers would remove
it. X appropriates the mattress for herself. X knows that the owner of the mattress
had meant to get rid of it. However, X believes that the crime of theft is defined
by law in such a way that it can be committed even in respect of property that
has been abandoned by its owner (a res derelicta). She is then mistaken as to the
law (albeit not as to the facts); the second exception to the “rule in Davies” comes
into operation, and X cannot be convicted of attempted theft.
Contrast the following possible set of facts with the preceding one: X appro-
priates the mattress mentioned above. She knows very well what the relevant
provisions of the law are (ie, that theft cannot be committed in respect of a res
derelicta). She believes, however, that the mattress merely fell from a lorry
when the owner was moving her furniture, and that the owner never meant to
get rid of it. In reality, the owner did in fact mean to get rid of it (as in the first
example). In such a case X is not mistaken as to the provisions of the law, but
as to the facts, and can therefore be convicted of attempted theft.49
________________________

49 In Palmos 1979 2 SA 82 (A) 94 X received goods in the mistaken belief that they were
stolen. The question arose whether he could be convicted of attempted theft. The Appel-
late Division answered this question in the negative, since it was of the opinion that X’s
conduct at most amounted to the commission of a putative crime. The court’s conclusion
has been criticised, (see Van Oosten 1979 THRHR 323; De Wet and Swanepoel 174) –
correctly, it is submitted. X knew that theft was a crime. He knew that to receive stolen
goods amounted to committing theft. He was not mistaken about the legal nature or de-
scription of one of the elements of the crime. His mistake related only to the question
[continued]
284 CRIMINAL LAW

10 Voluntary withdrawal It stands to reason that there is no punishable

attempt if X voluntarily withdraws from her criminal plan of action before her
conduct constitutes the commencement of the consummation. The question is
simply whether a withdrawal after this stage but before completion of the crime
constitutes a defence to a charge of attempt.
According to our courts, voluntary withdrawal after the commencement of
the consummation is no defence.50 X is therefore guilty of attempt. Although
the courts have confirmed this rule in a number of cases, not a single decision
seems to present a clear, unequivocal example of a person’s voluntarily with-
drawal from committing a crime which she has already started to commit.
Hlatwayo51 is usually regarded as the most important decision concerning
this form of attempt. In this case X was a servant who put caustic soda into her
employers’ porridge, intending to poison them. Two other servants saw the por-
ridge discolour, realised what was happening and informed another servant who
was working outside the house. It was as a result of this that X then threw the
porridge away. She was nevertheless convicted of attempted murder. The court
held that her acts had already reached the stage of consummation, and that her
change of mind did not exclude her liability for attempt. It is submitted that this
decision is no authority for the proposition that voluntary withdrawal is no
defence, for the simple reason that there was no voluntary withdrawal by X. She
was caught out by other people and for that reason decided not to proceed with
her plan.
In B52 the Appellate Division accepted that it was held in Hlatwayo that vol-
untary withdrawal was no defence, and that the decision was correct. In Du
Plessis53 the Appellate Division obiter confirmed the rule that voluntary with-
drawal after the commencement of the consummation is no defence.
11 Voluntary withdrawal: criticism of punishment It is not disputed that if
the withdrawal takes place after the first harm has already been done the attempt
ought to be punishable. If, in the course of committing assault, X “withdraws”
after having struck the first blow, or if in the course of committing arson, she
“withdraws” after the first flames have already damaged the building, the “with-
drawal” is too late to afford X a defence. However, the position ought to be
different if X withdraws before having inflicted any harm or damage even if her
conduct up to that stage can be construed as having already passed the point
where the “consummation has commenced”. One can take as an example the
case where X, wanting to commit housebreaking and theft, has already inserted
the key into the door of Y’s house. At that stage she reconsiders her conduct,
decides voluntarily to desist from her plan, withdraws the key and walks away.
Her attempt ought not to be punishable.
________________________

whether or not the particular boxes, containing certain goods that were delivered to his
pharmacy, were stolen. This was not a mistake of law relating to either the existence of
the crime or the legal description of one of its elements, but merely a mistake relating to
one of the factual circumstances of the case. The case should therefore have been regarded
as one of attempt to commit the impossible, which is punishable.
50 Hlatwayo 1933 TPD 441; B 1958 1 SA 199 (A); Du Plessis 1981 3 SA 382 (A) 400.
51 Supra.
52 1958 1 SA 199 (A) 203.
53 1981 3 SA 382 (A) 400.
 ATTEMPT, CONSPIRACY AND INCITEMENT 285

The rule applied by the courts that voluntary withdrawal can never be a de-
fence seems to be based upon the corresponding rule in English law.54 How-
ever, English law in this respect is completely at variance with the approach to
voluntary withdrawal in the USA and on the continent of Europe. In the Con-
tinental legal systems, voluntary withdrawal before the completion of the crime
is treated as a defence,55 and in the USA there is an increasing tendency to devi-
ate from the original English-law approach in favour of the Continental one.56
If one considers the reasons for punishing acts of attempt it is not difficult
to understand why the above-mentioned legal systems regard voluntary with-
drawal as a defence. The rationale for punishing attempt is to be found in the
relative theories of punishment. If somebody voluntarily withdraws from her
criminal scheme it means she has already been deterred from committing the
crime and its commission has already been prevented. There is no danger to
society. As for the reformative theory, there is nobody to be reformed because
X has already reformed herself. One of the basic reasons for distinguishing
between acts of preparation and acts of consummation is that a person ought
not to be punished as long as there is still a possibility that she may change her
mind for the better.57
Apart from these considerations, there are the following additional reasons
for decriminalising attempt if there was a voluntary withdrawal: Firstly, the law
ought to encourage prospective wrongdoers not to transgress. It cannot do this
by punishing people who decide to abandon their criminal plans. The prospect-
ive criminal should know that she will be rewarded if she voluntarily abandons
her criminal project. Secondly, voluntary withdrawal proves that X did not in
fact have the intention at all material times to complete her act; in other words,
X’s intention was not so strong as to “motivate” her to complete the crime.58
After all, for a conviction of attempt to commit a crime the state must prove
that X had intention to commit the completed crime, and not merely an inten-
tion to attempt to commit the crime.
________________________

54 Ashworth 466.
55 Germany: s 24 of the Penal Code; Schönke-Schröder ad s 24 ff; Jescheck and Weigend
536 ff; Maurach-Gössel-Zipf 48 ff; Kühl ch 16; the Netherlands: see s 45 of the Penal
Code; Hazewinkel-Suringa-Remmelink 403 ff; Noyon-Langemeijer-Remmelink 299 ff;
France: s 121–5 of the new Penal Code of 1994; Merle and Vitu 489; Belgium: s 51 of
the Penal Code; Switzerland: s 21 and 22 of the Penal Code; Austria: s 16 of the Penal
Code.
56 La Fave 604 ff; s 5.01(4) of the Model Penal Code; Fletcher 184 ff; Robinson 1 363 ff;
Crew 1988 American Criminal Law Review 441. At 444 the author shows that roughly
half of the American jurisdictions recognise voluntary withdrawal as a defence.
57 This is possibly exactly what Watermeyer CJ had in mind in Schoombie 1945 AD 541
547–548 when he spoke of “the last series of acts which would constitute a continuous
operation, unbroken by intervals of time which might give an opportunity for reconsider-
ation” as acts of consummation (italics supplied).
58 See Fletcher 184 ff. This writer’s discussion deals not only with the position in Continen-
tal legal systems, but also with the latest reforms taking place in the USA. He states
(195): “It seems that the defence of voluntary abandonment will eventually become a
standard feature of American penal codes.” The American writer Dressler 405 likewise
argues that voluntary withdrawal ought to be a defence. See also Crew 1988 American
Criminal Law Review 441. Labuschagne 1995 Stell LR also supports the view that volun-
tary withdrawal ought to constitute a defence to a charge of attempt.
286 CRIMINAL LAW

The court’s unwillingness to recognise voluntary withdrawal as a defence to

a charge of attempt is difficult to reconcile with their willingness to recognise
voluntary withdrawal from a common purpose to commit a crime or from a
conspiracy as a defence.59
12 Intention A person can be guilty of attempt to commit a crime only if she
had the intention to commit that particular crime.60 “Intention” in this connec-
tion bears the same meaning as intention to commit the completed crime, and
dolus eventualis is therefore sufficient.61 Negligent attempt is notionally impos-
sible: one cannot attempt, that is, intend to be, negligent. For this reason there is
no such thing as attempt to commit culpable homicide.62
13 Punishment A lesser punishment is usually imposed for attempt than for
the completed crime. The most important reason for this is that, from the view-
point of the retributive theory of punishment, either no harm or less harm (com-
pared to the completed crime) has been caused.

C CONSPIRACY
1 Prohibition of conspiracy Conspiracy to commit a crime is punishable in
terms of section 18(2)(a) of the Riotous Assemblies Act 17 of 1956. The section
provides as follows:

“Any person who . . . conspires with any other person to aid or procure the
commission of or to commit . . . any offence, whether at common law or
against a statute or statutory regulation, shall be guilty of an offence and
liable on conviction to the punishment to which a person convicted of actu-
ally committing that offence would be liable.”

Although conspiracy is punishable in terms of an old statute dealing with riot-

ous assemblies, the crime of conspiracy as defined in the act is not limited to
acts relating to riotous assemblies. The definition is wide enough to cover con-
spiracy to commit any crime.
2 Purpose of prohibition One of the most important reasons for criminalis-
ing conspiracies to commit crimes is the consideration that the mere agreement
by a number of people to commit a crime, even though the conspiracy is not yet
executed, creates a danger to society. The will of a number of people to commit
crime is a greater potential danger than the will of a single person to commit a
crime. The one person encourages another to the commission of a crime. A con-
spiracy leads to a mutual, fraternal spirit amongst the conspirators which makes
it difficult for one of them to change her mind, or to persuade the other members
of the group to desist from the commission of the crime. Conspirators are usually
also able to initiate more ambitious criminal ventures than single individuals.
________________________

59 Nomakhlala 1990 1 SACR 300 (A); Nzo 1990 3 SA 1 (A) 10; Beahan 1992 1 SACR 307
(ZS); Nduli 1993 2 SACR 501 (A) 504; and see generally supra VII B 16.
60 Schoombie 1945 AD 541 547; Du Plessis 1981 3 SA 382 (A) 400.
61 Huebsch 1953 2 SA 561 (A) 567; Botha 1959 1 SA 547 (O) 551–552.
62 Ntanzi 1981 4 SA 477 (N) 482 F–G; Naidoo 2003 1 SACR 347 (SCA) 356g.
 ATTEMPT, CONSPIRACY AND INCITEMENT 287

3 Successful conspiracy Section 18(2)(a) does not differentiate between a

successful conspiracy (ie, one followed by the actual commission of the crime)
and one not followed by any further steps towards the commission of the crime.
It is theoretically possible to charge and convict a person of contravening this
provision even if the crime envisaged has in fact later been committed. Our
courts have, however, indicated that this provision ought to be utilised only if
the envisaged crime has not been committed.63 If the conspiracy has been
followed by the commission of the envisaged crime, it is better to charge the
conspirators as co-perpetrators of, or accomplices to, the commission of the
main crime.
On the other hand, there is no absolute prohibition on the state to charge
somebody with conspiracy if the main crime has in fact been committed. For
example, where there are a number of co-perpetrators and the prosecutor is of
the opinion that it might be difficult to prove that one of them has committed
the main crime whereas there is clear evidence that she participated in the con-
spiracy, she may be charged with conspiracy only while the others may be
charged with having committed the main crime.64 It would, of course, be wrong
to convict somebody of both the conspiracy and the main crime, since these
two crimes merge (just as a successful attempt to commit a crime merges with
the completed crime).
4 The act
(a) The actual entering into an agreement In South African law the crime
of conspiracy can be committed only if what the parties agree to do is a crime.
There can be a conspiracy only if there is a definite agreement between at least
two persons to commit a crime.65 The mere fact that X and Y have the same
intention does not mean that there is, therefore, a conspiracy between them.
Before there can be a conspiracy, X and Y must agree with one another to
commit a crime,66 and the act consists in entering into an agreement. This idea
is often expressed by the statement that “there must be a meeting of minds”.67 If
X breaks into a house and Y, completely unaware of X’s existence and there-
fore of her plans, breaks into the same house on the same occasion, neither of
them is guilty of conspiracy, even though they both have the same intention.
(b) Pretended consent not sufficient There is no conspiracy if one of the two
parties only pretends to agree but in fact secretly intends to inform the police of
the other party’s plans so that she may be apprehended.68 A trap can therefore not
be convicted of conspiracy; what is more, the other party who seriously wishes
to agree to commit a crime cannot be convicted of conspiracy either, because
there was no true agreement between at least two persons to commit a crime.
________________________

63 Khoza 1973 4 SA 23 (O) 25; Fraser 2005 1 SACR 456 (SCA) par 7; Libazi 2010 2
SACR 233 (SCA) par 19.
64 Basson 2000 1 SACR 1 (T) 15; Tungata 2004 1 SACR 558 (Tk) 564.
65 Alexander 1965 2 SA 818 (C) 821; Cooper 1976 2 SA 875 (T) 879; Sibuyi 1993 1 SACR
235 (A) 249e.
66 B 1956 3 SA 363 (E) 365; Moumbaris 1974 1 SA 681 (T) 687.
67 Cf Moumbaris supra 687A–B: “A conspiracy is thus not merely a concurrence of wills
but a concurrence resulting from agreement”; Zwane (3) 1989 3 SA 253 (W) 262C–D;
Agliotti 2011 2 SACR 437 (GSJ) par 9.2.
68 Harris 1927 NPD 330 347–348; Moumbaris supra 687.
288 CRIMINAL LAW

(c) Implied conspiracy The conspiracy need not be express; it may also be
tacit. However, there is a tacit conspiracy only if the other party consciously
agrees to the scheme.69 If, while X is robbing a bank, Y, who has not previously
reached an agreement with X, spontaneously associates herself with X’s con-
duct by facilitating matters for her, a tacit conspiracy between X and Y will be
construed only if X is prepared to accept Y’s assistance. There can be no
conspiracy if X does not want to have anything to do with Y. A court may infer
the existence of a conspiracy from persons’ conduct, provided that the inference
is the only reasonable one to be drawn from the facts.70
(d) Mere knowledge insufficient Since knowledge is only one aspect of inten-
tion, it follows that mere knowledge of the existence of a conspiracy is insuffi-
cient to warrant a conviction for conspiracy. For example, a person who merely
overhears a telephone conversation in which two people agree to commit a
crime is not a party to the conspiracy; neither is she a party if she is merely
present while others conspire but does not expressly or by conduct make herself
a party to the agreement.71
(e) “Umbrella spoke conspiracy” A conspiracy may come into being by way
of what has been described as an “umbrella spoke conspiracy”. Here somebody
in the middle (the “umbrella’s centre”) discusses and independently agrees with
different people (the “umbrella’s spokes”) on different occasions.72 If X, a polit-
ical activist, establishes a secret organisation aimed at forcibly overthrowing
the government and for this purpose approaches other people one by one (inter
alia first Y, then Z) and persuades them to join the organisation, she is the per-
son in the middle, and Y and Z are co-conspirators with her. The fact that Y
and Z join at different times and places does not mean that they are not mem-
bers of the same conspiracy. It is not necessary for the one to know the others’
identity, but each should know that the organisation also has, or will have, other
members.
( f ) “Chain conspiracy” The conspiracy may also come into being in a way
comparable to the links of a chain. Here B enters into an agreement with A, then
C joins up with B, then D with C, and so forth.73 A typical example of a “chain
conspiracy” is furnished by the unlawful activities of a series of people or syndi-
cates who smuggle illicit articles, such as drugs, from abroad, then sell them to
agents, who sell them to retailers, who in turn sell them to the consumer.
(g) Direct communication between all conspirators not required It follows
from what has been said above that, for a conspiracy to come into existence, it
is not necessary for the one conspirator to know the identity of all the other
conspirators. She must, however, be aware of their existence. The conspirators
need not be in direct communication with each other. If X agrees with Y to
commit a crime together with Y and Z, and Z in turn agrees with Y to commit a
crime together with X and Y, there is one conspiracy between X, Y and Z and
all three may be jointly charged with conspiracy. X is therefore deemed to have
________________________

69 Agliotti supra par 9.3.

70 Khoza 1973 4 SA 23 (O) 25; Cooper supra 879G; Agliotti supra par 9.4.
71 Nooroodien 1998 2 SACR 510 (NC) 520c.
72 Snyman 1984 SACC 3 13.
73 Ibid.
 ATTEMPT, CONSPIRACY AND INCITEMENT 289

conspired with Z too. X need not have known Z’s identity, but she must have
been aware of her existence. It follows from this that any person who joins an
organisation whose aim or one of whose aims is to commit a crime or crimes,
whilst aware of its unlawful aim or aims, or remains a member after becoming
aware of them, signifies by her conduct her agreement with the organisation’s
aims and thereby commits conspiracy.74
(h) General aspects of act of conspiracy The parties need not agree about
the exact manner in which the crime is to be committed.75 There is not yet a con-
spiracy if the two parties are still negotiating with each other. As soon as they
have reached agreement the crime of conspiracy is complete, and it is unneces-
sary to prove the commission of any further acts in execution of the conspir-
acy.76 Abandonment of the scheme after this stage is no defence.77
5 Intention The requirement of intention may be divided into two com-
ponents: first, X must have the intention to conspire with another, and secondly,
she must intend to commit a crime or to assist in its commission. If X sells Y an
article which she (X) knows will be used by Y to commit a crime, her mere
knowledge is not sufficient ground for construing a conspiracy. A conspiracy
may be construed only if a court is satisfied that Y was also aware of X’s
knowledge. Only then can one speak of “a meeting of minds”.78
6 Punishment According to the wording of section 18(2) of the Riotous
Assemblies Act 17 of 1956 the conspirator is liable to the same punishment as
the person convicted of committing the crime. A lighter punishment ought to be
imposed for conspiracy than for the main crime because conspiracy does not
usually result in the same harmful consequences as the commission of the main
crime. If a minimum sentence is prescribed for the main crime, a court is not
bound to impose that sentence for conspiracy but may impose a lighter one.79

D INCITEMENT
1 Prohibition of incitement Incitement to commit a crime is punishable in
terms of section 18(2) of the Riotous Assemblies Act 17 of 1956, the relevant
portions of which read as follows:

“Any person who . . . incites, instigates, commands or procures any other

person to commit any offence, whether at common law or against a statute
or statutory regulation, shall be guilty of an offence and liable on conviction
to the punishment to which a person convicted of actually committing that
offence would be liable.”
________________________

74 Cooper 1976 2 SA 875 (T) 879; Twala 1979 3 SA 864 (T) 872; Zwane (3) supra 256F–G,
262D–F.
75 Adams 1959 1 SA 646 (Sp Ct); Cooper supra 879H; Du Toit 2004 1 SACR 66 (T).
76 Sibuyi 1993 1 SACR 235 (A) 249d–e; Du Toit supra 77h; Agliotti 2011 2 SACR 437
(GSJ) par 9.5
77 For criticism of the rule that abandonment cannot be a defence, see Snyman 1984 SACC
3 23–24.
78 Agliotti supra par 9.7. See the discussion of the intent requirement by Snyman 1984
SACC 15 ff.
79 Nel 1987 4 SA 950 (T) 961D–E.
290 CRIMINAL LAW

The section speaks of “incites, instigates, commands or procures”. In the dis-

cussion which follows all these acts will, for the sake of convenience, be refer-
red to as “incitement”.
2 Successful and unsuccessful incitement The definition of the crime does
not distinguish between successful and unsuccessful incitement. The crime is
formulated widely, because liability for incitement does not depend on whether
Y had indeed committed the crime to which she was incited. The Appeal Court
has held that a person ought only to be charged with contravening section
18(2)(b) if the incitement has been unsuccessful.80 If the incitement has been
successful, X may be charged as co-perpetrator or accomplice to the commis-
sion of the main crime.81 However, nothing in the wording of the section pre-
vents the state from charging someone with incitement, even though there is
evidence that the main crime has indeed been committed.82
3 Purpose of prohibition The most important reason for the prohibition of
incitement is to enable the authorities who have to maintain law and order to
thwart crime at an early stage, before any real damage has been done. The law
tries to discourage people who incite others to commit crimes by threatening
with punishment any act whereby one person influences the mind of another to
commit a crime.83
4 The act of incitement
(a) Influencing another to commit a crime The crux of the act of incitement
is that X comes into contact with Y and influences or seeks to influence Y verbally
or by conduct to commit a crime.84 In the leading case in Nkosiyana,85 Holmes
JA described the act as follows: “[A]n inciter is one who reaches and seeks to
influence the mind of another to the commission of a crime”.
Incitement is a purely formally defined crime in the sense that the crime is
completed the moment X influences Y in some or other way to commit the
crime. No causal relationship between X’s words and any subsequent action by
Y is required. X’s liability does not depend on whether she (X) indeed managed
to influence Y to commit the crime, whether Y agreed to do what X requested
her to do, whether, as a result of the incitement, Y had started doing something
towards the commission of the crime, or whether Y in fact committed the crime
as a result of the incitement. Whether Y was indeed influenced by X, or was at
all susceptible to influence, is irrelevant, just as it is irrelevant whether Y indeed
committed the crime as a result of the incitement.86 The fact that Y, though
________________________

80 Milne and Erleigh (7) 1951 1 SA 791 (A) 823. Also see O 1952 3 SA 185 (T).
81 Khoza 1973 4 SA 23 (O) 25; Smith 1984 1 SA 583 (A).
82 Where a number of people together committed a crime, and the prosecutor feels that it may
be difficult to prove that one of them, X, committed the main crime, while it would be rela-
tively easy to prove that X indeed committed incitement to commit the crime, the prosecutor
may, eg, decide to charge X with incitement only, and not with the commission of the main
crime. See Basson 2000 1 SACR 1 (T) 15. This decision deals with liability in respect of
conspiracy, but the argument of the court is equally valid as far as incitement is concerned.
83 Zeelie 1952 1 SA 400 (A) 405D–E; Nkosiyana 1966 4 SA 655 (A) 659.
84 Zeelie supra 405–506; Nkosiyana supra 658H.
85 1966 4 SA 655 (A) 658H.
86 Nkosiyana supra. In this case Y was a police trap who was never susceptible to any
incitement.
 ATTEMPT, CONSPIRACY AND INCITEMENT 291

having criminal capacity, was unintelligent and did not understand the contents
of X’s words properly, offers X no defence.
(b) Ways in which incitement may be committed Incitement may be commit-
ted in many different ways. The act of incitement may be explicit or implied.
An example of implied incitement is when a prostitute makes a certain move-
ment with her body in order to incite a man to sexual intercourse.87 Incitement
may be committed by either words or an act, and the verbal incitement may be
in oral or written form.
The following are examples of how X can commit the crime explicitly: X
suggests to Y that Y should commit a crime; or requests, instructs, encourages,
implores, persuades, or hires Y, puts pressure on Y; or bribes Y, as when X
promises Y a gift or some or other advantage if Y commits the crime.
In some older decisions the view was expressed that X can be guilty of incite-
ment only if the incitement contains an element of persuasion; there must in
other words be an initial unwillingness on the part of Y which is overcome by
argument, persuasion or coercion.88 However, in 1966 the Appeal Court held in
Nkosiyana89 that such an element of persuasion was not required.
It follows that incitement can be committed even in respect of someone who
had already decided to commit the crime, and in respect of whom no incitement
or even persuasion was therefore necessary (the so-called omni modo facturus).
The focus therefore is only on X’s conduct, and not on Y’s reaction or her sus-
ceptibility to any influencing. It follows that if X incites Y to commit a crime,
and Y decides not to accept X’s suggestion but to reject it, X will still be guilty
of incitement.
(c) Conduct that does not qualify as incitement X’s conduct does not qualify
as incitement if X merely describes to Y the pros and cons of a proposed commis-
sion of a crime by Y, or merely raises Y’s curiosity about the possibility of the
commission of a crime, or merely arouses greed on the part of Y (eg to obtain
Z’s money).90 Thus if X merely tells Y how easy it is to embezzle money in a
specific organisation, or how easily someone who has done it escaped being
caught, X’s words do not necessarily amount to incitement to theft. Neither do
X’s words which amount merely to the expression of an opinion, a wish or a
desire, necessarily qualify as incitement. Thus if X merely informs Y that it
would be a good thing if Z should die, one cannot beyond reasonable doubt
make the deduction that X was trying to influence Y to kill Z. It is not sufficient
for X merely to create a motive in Y to commit a crime.
(d) The concretisation requirement In order to commit incitement, X’s
words which he addresses to Y should not be too vague or equivocal. They
must be sufficiently concrete or specific, so that Y will know what she is incited
to do. An extreme example of “inciting words” which are too widely formulated
to amount to punishable incitement, is when X says to Y: “Commit crimes!”
________________________

87 Zeelie supra 410; F 1958 4 SA 300 (T) 306.

88 Sibiya 1957 1 SA 247 (T) 250; E 1957 4 SA 61 (G) 63; R 1958 3 SA 145 (T) 147. Contra
Port Shepstone Investments (Pty) Ltd 1950 2 SA 812 (N).
89 1966 4 SA 655 (A). For a more detailed exposition of the ways in which incitement can
be committed, see Snyman 2005 THRHR 374 430–435.
90 Schönke-Schröder note 5–9 ad a 30; Kühl ch 20 par 178.
292 CRIMINAL LAW

Such a statement cannot qualify as incitement, because Y does not know which
crimes she is spurred on to commit, or who or what should be the object of her
criminal acts. The same is true of unspecified expressions such as “You should
teach her a lesson!” or “You should not let your chances of putting her in her
place slip through your fingers!”
It is submitted that there are two elements of X’s words that must be expressed
sufficiently concretely before the statement can qualify as punishable incite-
ment. The first is the description of the crime to which Y is incited, and the sec-
ond the description of the identity of the victim (Z) or object in respect of which
the crime is to be committed.91
First, the type of crime to be committed by Y must be adequately specified. It
may be either an explicitly defined crime or a crime that falls within an identi-
fiable group of crimes, such as crimes of dishonesty (fraud; forgery and uttering;
theft by false pretences) or crimes of violence (ordinary or qualified assault,
murder). X need not necessarily name the crime that he wants Y to commit
explicitly, that is, by its proper and full legal appellation (such as “defeating or
obstruction of the course of justice”, or in the case of a statutory crime “contra-
vention of section A of Act B of year C”). It is sufficient if X uses words that
would reasonably be understood as a synonymous description of the crime to
which Y is incited. It is therefore sufficient if X, instead of using the word “rob-
bery”, urges Y to “hit Z over the head, grab his money and run away with it”
It is not necessary for X to specify the finer details of the commission of the
crime, such as the precise time, place and manner of execution, as these factors
normally depend on events or circumstances that are only subsequently ascer-
tainable. It is sufficient for X merely to specify the essential dimensions of the
crime or type of crime, without specifying the finer modalities relating to its
commission.
Secondly, X must specify the person, group of persons or object in respect of
which the crime should be committed. Y has to be a specific person or someone
from a specifiable group, such as people exercising a specific profession, hold-
ing a specific office, living in a specific geographical area, belonging to a spe-
cific racial group, or performing a specific activity, such as driving a motor car.
X may leave the decision to Y as to which individual within the group to
choose as her victim. It follows that if X merely exhorts Y: “Commit theft!” or
“Commit murder!” without supplying any further particulars about the victim
of the crime, the words do not qualify as incitement.92
What is not required is that X should know the identity of the person or per-
sons incited. In fact, incitement can be directed even at a crowd of unknown
people.93 X may therefore commit incitement by uttering the inciting words in
________________________

91 German-law sources discuss the requirement of concretisation comprehensively. See

Jescheck and Weigend 688; ch 20 par 188; Geppert 1997 Jura 303; 359; Schönke-
Schröder notes 17 and18 ad a 26. For a more detailed exposition of this requirement in
the SA legal literature, see Snyman 2005 THRHR 428 435–438.
92 Kühl ch 20 pars 90–192; Maurach, Gössel and Zipf 343.
93 In R v Segale 1960 1 SA 721 (A) the Appeal Court upheld a conviction of incitement in a
situation where the people who were incited to commit the crime were not one particular
person or a group of persons, but, in the words of the court, “the whole of the non-European
[continued]
 ATTEMPT, CONSPIRACY AND INCITEMENT 293

the course of a speech to people whom she does not even know.94 X may also
commit incitement if her words are contained in a publication or pamphlet and
it is accordingly impossible for her to know the identity of the readers.95
The question arises whether X commits incitement if she tells Y: “Commit
shoplifting!” or “Rob petrol stations!” The shops from which Y should steal or
the petrol stations to be robbed are not specified. It is submitted that in cases
such as these there is enough specification of both the type of crime and the
object of the crime, and that X accordingly commits incitement. If the leader of
a terrorist group calls on members of the group to rob banks in order to obtain
money for the group, such an injunction is sufficient to render the leader of the
group punishable for incitement to robbery, even though the further particulars
concerning the way in which the crime should be committed are not specified
by the leader, but left to the individual members of the group to decide.
(e) Incitement by omission not possible Is it possible to commit incitement
by means of an omission? Y, for example, plans to commit a crime. X knows
this, but deliberately refrains from discouraging Y from committing the crime.
Can X’s omission be regarded as an act of incitement? It is submitted that this
question should be answered in the negative.96 However, the position would be
different if X had a legal duty to act positively in the circumstances and to
advise Y against his planned action, such as where X is a police officer.
5 Intention
(a) General Incitement can never be committed negligently. The form of
culpability required is intention. X must have the intention to come into contact
with Y and to incite Y to commit the crime.97 X must intend to arouse in Y the
intention to commit the crime, as well as the intention to put the criminal plan
into action. Dolus eventualis is sufficient. The requirement that X must endeav-
our to arouse in Y the intention to commit the crime implies that it is impossible
to incite somebody to commit a crime of negligence, such as culpable homicide.
(b) X must believe that Y will have the required intention X must know that
Y will also act with the intention to commit a crime.98 If X knows that Y is
under a misconception with regard to one or more of the material elements of
the crime, and that Y, should she act as requested, would therefore merely be an
innocent go-between, X lacks the required intention to incite Y. Assume that X
asks Y to make a certain entry in a register. X knows that the entry is false. Y
________________________

labour force of the Witwatersrand” (731A). In this case people were incited to go on strike
as part of a demand for higher pay, although this was in contravention of certain statutory
provisions.
94 S v Peake 1962 4 SA 288 (C).
95 Q v Most [1881] 7 QBD 244. It is submitted that the statement made by certain people in
the South African political debate, namely “Kill the Boer, kill the farmer!” is without
doubt punishable as incitement to murder. The statement contains sufficient identification
of the type of crime that must be committed, namely murder, as well as sufficient identi-
fication of the group of people who are to be the victims, namely that part of the South
African population knows as the “Boere”. As indicated above, it is not required that X
should know the identity of the people whom she incites to commit the crime.
96 This is also the view of German writers who discuss this question. See Geppert 1997 Jura
365; Schönke-Schröder note 8 ad a 26; Jescheck and Weigend 691; Kühl ch 20 par 178.
97 Nkosiyana 1966 4 SA 655 (A) 658.
98 Milne and Erleigh (7) 1951 1 SA 791 (A) 822.
294 CRIMINAL LAW

does not know this, and X knows that Y does not know this. X can then not be
found guilty of incitement.99 The requirement in section 18, namely that X has
to incite Y to commit a crime, is then not complied with. However, in such a
case X may be charged and convicted as an indirect perpetrator if Y indeed
makes the entry, on the ground that X used Y as only an innocent instrument to
commit the crime.
(c) Exceeding the limits of the incited crime X’s liability for incitement is
limited to the incitement contained in her words of incitement. If Y commits a
more serious crime not covered by X’s words of incitement, X is not liable for
the commission by Y of the more serious crime. If, for example, X incites Y to
commit ordinary assault but Y thereafter commits assault with the intention to
do grievous bodily harm, X cannot be found guilty of incitement to assault with
the intention to do grievous bodily harm, as X’s intention did not encompass
the aggravating element of the crime committed by Y. The position is the same
if X incites Y to commit theft, but Y thereafter goes further and commits rob-
bery: X is then not criminally liable for incitement to commit the more serious
crime of robbery.
If X incites Y to commit a more serious crime, such as robbery, but Y actually
commits only theft (a less serious crime, the elements of which are contained in
robbery), X can nonetheless still be found guilty of incitement to robbery, be-
cause incitement is completed the moment X has incited Y. The precise course
of events thereafter does not influence X’s culpability.
(d) Incitement subject to a condition The question arises whether X’s words
would qualify as incitement if that which X urges Y to do is subject to a con-
dition. For example, X urges Y to go to Z and demand that Z gives her (Y)
money. The words of incitement further stipulate that should Z refuse to give Y
the money, Y must then assault Z and get the money by means of violence. It is
submitted that such conduct by X amounts to incitement to robbery. In Dick 100
the then Rhodesian court expressly held that incitement which is subject to a
condition nevertheless amounts to punishable incitement, and it is submitted
that the position in South Africa is the same. In instances of conditional incite-
ment, X so to speak “sows the seed” of the crime in Y’s mind, and afterwards
X does not have any control over the course of events. In these situations X’s
intention to incite is present in the form of dolus eventualis.
6 Incitement to commit the impossible What is the position if X incites Y
to perform an act that cannot possibly amount to a crime? For example, X
incites Y to put her hand in Z’s pocket and steal money from the pocket. X
believes that there is money in Z’s pocket, but there is in fact no money in it. It
is submitted that in a situation such as this X commits incitement to theft. In
________________________

99 Milne and Erleigh supra 822; Segale 1960 1 SA 721 (A) 731.
100 1969 3 SA 267 (R) 268G–H. In this case X asked Y first to give Z a certain substance, in
the hope that it would induce Z, a woman who had previously lived with X, to return to
X. However, X added that, should the substance not have the desired effect, Y must kill
Z. X was found guilty of incitement to murder. In the English decision Shephard [1919]
2 KB 125, X said to Y, a pregnant woman, that she should kill the baby if it were born
alive. The court found that X was guilty of incitement to murder, even though, at the
moment when he uttered the words, it was not certain whether the baby would be born
alive, and the words of incitement were thus subject to a condition.
 ATTEMPT, CONSPIRACY AND INCITEMENT 295

situations such as these the courts ought to apply the same rule they apply in
attempts to do the impossible. In attempts to do the impossible the courts apply
a subjective approach: X is found guilty of attempt despite the fact that what
she strives to attain is not physically possible.101
7 Chain incitement It is possible for X to commit incitement even though
she does not incite Y1 to commit the crime herself, but to get somebody else,
Y2, to commit the crime. It is also possible for X to commit incitement if she
incites Y1 to go to Y2 and then request Y2 to incite Y3 to commit the crime. In
such a situation one speaks of a “chain incitement”. Chain incitement is in
essence incitement to incitement. For example, woman X asks her son, Y1, to
obtain a professional killer, Y2, to kill her husband, Z. The number of “links”
in the “chain” makes no difference to X’s liability for incitement. Recognition
of the principle of chain incitement flows from the rule that incitement can also
take place vicariously, that is, through the use of an intermediary.
In order to be guilty of incitement in the above examples, X need not know
the identity of each of the links in the chain; more particularly, it is not required
that she knows the identity of the final or main perpetrator. X may leave it to
the next person in the row (or link in the chain) to decide who should be the
main perpetrator.102
8 Impossible to incite a person who lacks criminal capacity Incitement is
only possible in respect of someone who is endowed with criminal capacity. If
X incites Y, who is mentally ill or a child lacking capacity, to commit a crime,
knowing that Y is mentally ill or that she lacks capacity, X does not commit
incitement. In the words of section 18(2)(b), X does not get somebody to
“commit a crime”, because a person who lacks criminal capacity cannot
commit a crime. However, if Y does commit the act which she has been incited
to commit, X may be found guilty as an indirect perpetrator, that is, somebody
who commits the crime through the instrumentality of another.
9 Relationship between incitement, conspiracy and attempt
(a) Attempt to commit incitement Attempt to commit incitement is possible.
The following are examples of conduct that amount to attempt to commit incite-
ment: If X posts a letter to Y in which she incites Y to commit a crime, but the
letter is intercepted in the post and does not reach Y, X’s conduct amounts to
attempt to commit incitement.103 This is a case of so-called “completed attempt”.
X also commits attempted incitement if she utters inciting words at Y, but Y is
deaf and therefore does not hear the words, or if Y is mentally ill and therefore
does not understand the contents and meaning of the words, or if Y puts the
inciting words in writing and hands the paper to Y, but Y is illiterate and thus
cannot read what was written.
(b) Incitement to attempt Incitement to commit, not the main crime, but to
attempt to commit the main crime, is also possible, as in the following example:
X gives Y a firearm loaded with blank cartridges and asks Y to shoot Z. X
________________________

101 Supra VIII B 8. The leading case on this subject is Davies 1956 3 SA 52 (A). Support for
the proposition stated in the text may also be found in Dick 1969 3 SA 267 (R) 269B–H.
102 Kühl ch 20 par 188; Schönke-Schröder note 13 ad a 26. For more particulars on “chain
incitement”, see Snyman 2005 THRHR 563 568–569.
103 Nkosiyana 1966 4 SA 655 (A) 650A.
296 CRIMINAL LAW

knows that the gun is loaded with blank cartridges, but Y does not know this. If
Y should aim the gun at Z and pull the trigger, it would be impossible for Y to
kill Z, and Y would thus merely commit attempted murder. It is submitted that
in this situation, X commits incitement to attempted murder.
(c) Overlapping between incitement and attempt In some earlier cases the
view was held that incitement can never amount to an attempt,104 but this view
was – quite correctly – not followed by the Appellate Division in Port Shepstone
Investments (Pty) Ltd.105 It is submitted that certain acts of incitement may simul-
taneously qualify as attempts to commit the main crime. Whether this is the case,
depends on the circumstances of each case. If X’s conduct whereby she incites
Y is so close to the commission of the main crime that it qualifies as attempt in
terms of the rules governing attempt, the conduct may be punishable as attempt.
For example, X incites Z, who is armed, to murder Y. Z is already in Y’s pres-
ence. X’s conduct is, in respect of time and place, so close to completion of the
main crime that it may qualify as an act of execution (as opposed to a mere act
of preparation), and thus as attempt.
(d) Overlapping between incitement and conspiracy If X incites Y to commit
a crime, and Y agrees to do so, there is a conspiracy between X and Y. There
seems to be no reason why conspiracy to commit incitement is not possible. Like-
wise there seems to be no reason why incitement to commit conspiracy is not
possible; in fact, the inciter usually tries to obtain the incited person’s cooper-
ation or consent to commit the crime. In Zeelie106 Schreiner JA was of opinion
that it is wrong to assume that all conspiracies necessarily imply mutual incite-
ment between the parties, “for the party who first opened negotiations may have
proceeded so tentatively and the other party may have been so predisposed to
concurrence that there may . . . have been nothing amounting to an offer or pro-
posal, which I take to be the minimum required for an incitement”.
10 Punishment Section 19(2)(b) of the Riotous Assemblies Act 17 of 1956 pro-
vides that if the inciter is found guilty, she “is liable on conviction to the punish-
ment to which a person convicted of actually committing that offence would be
liable”. This provision determines only the maximum punishment for incitement.
Normally the inciter gets a lighter punishment than the actual perpetrator, just
as someone who only attempts to commit the crime or only conspires to do so,
gets a lighter punishment than the actual perpetrator. Committing these acts
merely anticipates the commission of the eventual completed crime. In fact, the
inciter’s conduct is even further removed from the eventual completed commis-
sion of the crime than that of the conspirators, and their conduct is again further
removed from the eventual committing of the crime than that of the person who
is only attempting to commit the crime.
However, there may be cases in which a court may decide that the inciter de-
serves a heavy punishment, such as where the evidence reveals that she was the
master brain behind a whole criminal scheme, that she manipulated other poor,
unintelligent or unsophisticated people to do her dirty work, or that she enriched
herself financially through the commission of the criminal scheme.
________________________

104 Sharpe 1903 TS 868 875; Misnum 1906 TS 216 218–219; Nhlovo 1921 AD 485.
105 1950 4 SA 629 (A) 639.
106 1952 1 SA 400 (A) 402C–F.
 PART TWO

SPECIFIC CRIMES
 CRIMES AGAINST THE STATE AND THE
ADMINISTRATION OF JUSTICE

CHAPTER
IX

CRIMES AGAINST THE STATE

A HIGH TREASON

1 Definition A person commits high treason if, owing allegiance to the

Republic of South Africa, she unlawfully engages in conduct within or out-
side the Republic, with the intention of
(a) overthrowing the government of the Republic;
(b) coercing the government by violence into any action or inaction;
(c) violating, threatening or endangering the existence, independence or
security of the Republic; or
(d) changing the constitutional structure of the Republic.1

________________________

1 The precise reasons for this definition are to be found in the discussion which follows of
the requirements for the crime. For an exposition of the definitions of this crime in the old
Roman-Dutch, namely authorities, the case law and by modern South African authors,
see Mayekiso 1988 4 SA 738 (W) 742–750. The definition offered in the text relies heavily
on the excellent definition in clause 2(1) of the draft bill “to codify the law relating to the
common-law crimes of high reason, sedition and public violence” drawn up in 1976 by the
SA Law Commission (RP 17/1976). The relevant portions of the definition read as follows:
“2. (1) Any person who, owing allegiance to the Republic, commits an act, within or
outside the Republic, with the intention of–
(a) unlawfully impairing, violating, threatening or endangering the existence, independ-
ence or security of the Republic;
(b) unlawfully changing the constitutional structure of the Republic;
(c) unlawfully overthrowing the government of the Republic; or
(d) unlawfully coercing by violence the government of the Republic into any action or
into refraining from any action,
shall be guilty of the crime of high treason . . .
[continued]

299
300 CRIMINAL LAW

This definition reflects the law immediately before the coming into operation of
the present Constitution of 1996. Certain provisions of the Bill of Rights in the
Constitution may result in at least certain aspects of the above definition no
longer being valid. In the discussion which follows, the common law relating to
high treason will be analysed without considering the provisions of the Bill of
Rights, but at the end of the discussion of the crime, in paragraph numbered 11,
the question as to the possible influence of the Bill of Rights on the contents of
the crime will be discussed.

________________________

(2) Without derogating from the general purport of subsection (1)–

(a) any person referred to in that subsection who within or outside the Republic un-
lawfully and intentionally–
(i) takes up arms against the Republic;
(ii) takes part in an armed revolt or rebellion against the Republic or instigates
such revolt or rebellion;
(iii) causes any part of the Republic to secede from the Republic or attempts to
concert with others to cause any part of the Republic so to secede;
(iv) joins or performs service under an enemy that wages war against the Republic;
(v) assists an enemy at war with the Republic or makes propaganda for such
enemy or supplies such enemy with information that may be useful to it in its
war effort against the Republic;
(vi) after becoming aware of any act by any other person that constitutes high
treason in terms of this section, fails to report such act forthwith to the police
or other authorities, unless he has reason to believe that the police or other
authorities are already aware thereof; or
(b) being a citizen of the Republic who, when the Republic is in a state of war, leaves
the Republic and settles in the territory of the enemy of the Republic,
shall be guilty of the crime of high treason.
(3) Without restricting the circumstances in which any person owes allegiance to the
Republic, any person who is a citizen of the Republic or is domiciled or resident in the
Republic or is the holder of a valid South African passport shall owe allegiance to the
Republic.”
It is submitted that, although the bill containing the above definition was not submitted
to parliament, this definition of the crime (especially the provisions of clause 2(1)) is, in
broad outline, worth following. It succeeds in succinctly and accurately describing the
salient elements of the crime in our law. It should be borne in mind that the members of
the seven-member commission that drew up the definition included both a judge of
appeal who subsequently became Chief Justice (Rabie, JA, as he then was) and a judge-
president (James, JP, the then Judge-President of Natal). In Banda 1990 3 SA 466 (B)
479B Friedman J described this definition as “excellent” and in fact defined the crime
(479D) in terms substantially similar to those in the definition of the law commission
quoted above.
As far as par (b) in the definition in the text is concerned, the view taken in s 2(1)(d) of
the definition given by the law commission, namely that the coercion of the government
should be by violence, is adhered to. If violence is not required in this way of committing
the crime, the definition of the crime becomes too wide and vague. On the other hand it
should be noted that violence is required in the definition only in cases of coercion of the
government. There is no general rule that violence against the state is a necessary element
of treason (Mayekiso 1988 4 SA 738 (W)). As far as par (c) in the definition in the text is
concerned, the law commission in s 2(1)(a) of its definition speaks of “impairing, vio-
lating, threatening or endangering” (the existence etc of the Republic). It is submitted that
“impair” and “violate” mean substantially the same and that it is, therefore, unnecessary
to incorporate both terms into the definition.
 CRIMES AGAINST THE STATE 301

2 Elements of the crime The elements of the crime are the following: (a) the
perpetrator must owe allegiance to the Republic; (b) conduct (act or omission);
(c) unlawfulness; and (d) intention.
3 Historical High treason stems from the Roman law crime known originally
as perduellio, and later as crimen laesae maiestatis. After the fall of the Roman
republic, in other words during the time of the emperors, crimen laesae maies-
tatis was used not merely to describe high treason but also as a generic term to
describe all the ways in which the maiestas or supreme power of the state or
emperor could be impaired. The term crimen laesae maiestatis had both a broad
and a narrow connotation. According to the broad connotation it referred to all
crimes against the state or the supreme power (maiestas) within the state.
According to its narrow connotation it referred to only one of the crimes against
the state, namely high treason.2
The Roman-Dutch authorities also regarded perduellio or high treason as a
species (in fact the most important species) of the genus crimen laesae maie-
statis. The other species of the genus were sedition, crimen laesae venerationis
(impairment of the dignity of the head of state), and a variety of other acts
whereby the state’s maiestas was impaired, such as coining and the raising of
a private army.3 In both Roman and Roman-Dutch law these different forms of
crimen laesae maiestatis were ill-defined, and their descriptions frequently
overlapped.
4 Maiestas no longer required A feature of the definition of the crime in
Roman-Dutch law is the rule that the crime could be committed against only a
state possessing maiestas. This term, though somewhat vague, denoted in prin-
ciple the idea of supreme power or sovereignty. A state which recognised a still
higher authority within its territory did not possess maiestas, and, therefore,
high treason could not be committed in respect of such a subordinate state.4 It is
submitted that this problem is now merely of academic importance, for since at
least 1961 it has been settled beyond all doubt that South Africa is a sovereign
independent state, no longer acknowledging any higher authority. For this reason
it is unnecessary today to require that the state should possess maiestas.5
5 The perpetrator Only persons owing allegiance to the Republic can
commit high treason.6 The category of people owing allegiance to the Republic
is wider than the category of people who are citizens of the Republic. Persons
who owe allegiance to South Africa include citizens, people who have sworn an

________________________

2 On Roman law, see D 48 4; C 9 8; Gonin 1951 THRHR 1 ff.

3 Voet 48 4 2, 3; Moorman 1 3 1, 2; 1 4 3, 1 2 8; Decker 4 33 1; Matthaeus 48 2 2, 48 2 1
7; Van der Linden 2 4; Van Leeuwen Cens For 5 2 1, RHR 5 3 1; Huber HR 6 15.
4 Huber HR 6 15 4–6, 8; Moorman 1 2 1, 2, 5, 7, 12; Voet 48 4 1, 2; Matthaeus 48 2 1 1–6;
Christian 1924 AD 101; Banda 1989 4 SA 519 (B) 521–522.
5 Snyman 1979 De Jure 167 169–170; 1980 SALJ 14 17–18.
6 De Jager v Attorney-General of Natal (1907) 1904–1907 All ER 1008 (PC); Neumann
1949 3 SA 1238 (Sp Ct); Mange 1980 4 SA 613 (A) 619F; Tsotsobe 1983 1 SA 856 (A)
866–867; Magxwalisa 1984 2 SA 314 (N) 323E; Gaba 1985 4 SA 734 (A); Passtoors
(unreported, WLD 15.05.1986, discussed by Snyman 1988 SACJ 1 ff). For a detailed dis-
cussion of this requirement see Snyman 1988 SACJ 1.
302 CRIMINAL LAW

oath of allegiance to this country,7 people who are domiciled here and also people
who are resident here although they do not intend to stay permanently. In order
to prove that a person owes allegiance to the Republic it is sufficient for the state
to prove that she was resident here.8
The category of persons who do not owe allegiance includes9 foreigners who
have never set foot in the Republic, casual tourists from abroad who visit the
country for a brief period only, foreign businessmen or -women who visit the
Republic for a brief period of time for business reasons, and the crews of foreign
aircraft or ships who stay in the country for a brief period of time while they
wait for a flight back or, for example, for repairs to the aircraft or ship to be
completed.
It is submitted that the rationale for the requirement lies simply in the un-
desirable practical consequences which would flow from its absence, coupled
with considerations such as birth in the country or the voluntary performance of
an act (such as entering the country and residing there) which tend, broadly
speaking, to associate a person with the character, aspirations and fortunes of
that country.10 This latter consideration explains why, for example, members of
a foreign diplomatic mission in the Republic do not owe allegiance to the
Republic even though they may reside here for a relatively long time, and why
a person who is neither a citizen of a country nor resident there may be deemed
to owe it allegiance if she is in possession of a passport of that country which
she uses abroad.11
It is submitted that migrant labourers from abroad working and residing in
South Africa, as well as the huge number of illegal immigrants who find them-
selves in this country, owe allegiance to the Republic.
6 Acts of high treason
(a) Role of intention in determining whether there is a treasonable act It is
impracticable to posit a certain type of act as a requirement for the crime, be-
cause the hallmark of high treason is not a certain type of act but the hostile
intent with which an act is committed. Any act, however innocent it may seem
to be when viewed objectively, may constitute high treason if it is committed
with the necessary hostile intent.12
From a dogmatic point of view, high treason is a good example of a crime
which is structured in such a way that the intention cannot be regarded as ex-
clusively forming part of the element of culpability. It also forms part of the
definitional elements of the crime. Put differently, the intention forms part of the
“wrongdoing” in the structure of the crime. (“Wrongdoing” comprises all the
________________________

7 Ex parte Schwietering 1948 3 SA 378 (O); Neumann supra.

8 Passtoors supra; Zwane (3) 1989 3 SA 253 (W) 256I.
9 Prozesky (1900) 21 NLR 216 218; Badenhorst (1900) 21 NLR 227 288; Neumann supra
1256, 1264, 1265; Geyer (1900) 17 SC 501 506. See further the detailed discussion by
Snyman 1988 SACJ 1, especially 7–15.
10 Snyman 1988 SACJ 1 16.
11 Joyce v DPP [1946] 1 All ER 186 (HL).
12 Viljoen 1923 AD 90 92; Wenzel 1940 WLD 269 272; Mardon 1947 2 SA 768 (Sp Ct)
774; Adams 1959 1 SA 646 (Sp Ct) 666; Hogan 1983 2 SA 46 (W) 57C; Banda 1989 4
SA 519 (B).
 CRIMES AGAINST THE STATE 303

requirements for liability other than culpability. In a broad sense it is equivalent

to what the courts call the actus reus.) Otherwise it is impossible to identify the
conduct which must be unlawful. It is exactly the presence or absence of X’s
intention or knowledge which determines whether conduct which, viewed from
the outside, may be completely innocent, yet nevertheless constitutes an act of
high treason.
This point may be illustrated as follows: Y asks X, who is walking in a street
in Pretoria, to show her the way to the Union Buildings. X does this. Has X in so
doing committed high treason? Here one has to distinguish between the follow-
ing two possibilities: Had X not known who Y was, and had she thought that Y
was merely a tourist who wished to admire the Union Buildings’ architecture,
she has obviously not committed high treason. If, on the other hand, she had rec-
ognised Y as the person who was striving to overthrow the government by vio-
lence, and who wanted to get to the Union Buildings in order there to kill the
head of state as part of her scheme to overthrow the government, and had she
nevertheless proceeded to explain to her how to reach the Union Buildings, she
has indeed committed high treason. Viewed objectively, that is, from the out-
side, there is nothing to indicate that X had committed the crime. It is only X’s
subjective state of mind (knowledge, intention) that brings her act within the
definitional elements of the crime.13
(b) Committing high treason by omission Even an omission to act which is
accompanied by the requisite hostile intent constitutes high treason. Every per-
son who owes allegiance to the state and who hears or otherwise becomes aware
of the fact that high treason is being committed or that there is a plan to commit
it, has a duty to communicate this fact to the authorities as soon as possible.
Failure to do so constitutes high treason.14
(c) Acts of high treason in time of war High treason may be committed in
times of both war and peace. The following are examples of high treason
committed in times of war: assisting the enemy by fighting for it against the
Republic15 or against one of its other enemies;16 furnishing information to the
enemy;17 committing acts of sabotage against the Republic, thereby weakening
the Republic’s resistance;18 broadcasting propaganda on behalf of the enemy;19
providing invading enemy forces with food, shelter or military equipment,20 or
voluntarily accepting a post under the command of the enemy, for example, as
________________________

13 This principle is important for the purposes of the systematic description of the general
requirements of criminal liability: it proves that subjective considerations are not limited
to the determination of culpability, but also in determining wrongdoing – ie, the unlawful
act complying with the definitional elements (see supra III A 7–8; IV A 10). This is one
of the considerations which proves the untenability of the psychological theory of culp-
ability (see supra V A 9, 10).
14 Labuschagne 1941 TPD 271 275; Banda 1990 3 SA 466 (B) 512A–B.
15 Badenhorst (1900) 21 NLR 227; all the “Cape Treason Trials” reported in 1901 (vol 18)
CLJ 164; Leibbrandt 1944 AD 253.
16 Mardon 1947 2 SA 768 (Sp Ct) (during the Second World War X fought for Germany
against Russia).
17 Leibbrandt 1944 AD 253 281.
18 Leibbrandt supra 281.
19 Holm 1948 1 SA 925 (A); Strauss 1948 1 SA 934 (A).
20 Boers (1900) 21 NLR 116.
304 CRIMINAL LAW

guard, interpreter,21 or even as a cook.22 A South African subject who in time of

war leaves the Republic and settles in enemy country also commits treason, for
she thereby places herself under the enemy’s protection and owes the enemy
allegiance.23
(d) Acts of high treason in times of peace Examples of high treason commit-
ted in times of peace are the following: organising, taking part in or instigating
an armed revolt or rebellion against the Republic;24 inviting an attack by an out-
side enemy;25 taking up arms to coerce the government to follow a certain course
of action or to refrain from certain action;26 endeavouring to bring about the
unconstitutional secession of a certain area of the Republic from the rest of the
Republic;27 murdering, or attempting, conspiring or inciting to murder the polit-
ical or military leaders of the country;28 plotting the overthrow of the government
or the replacement of the constitution by unconstitutional means,29 attempting
to overthrow or endanger the government by undergoing military training abroad
and, upon returning to the Republic, setting out to achieve these aims by, for
example, committing acts of sabotage, attacking a police station or establishing
a secret military base,30 and concealing quantities of weapons in a certain place
for later use by people wishing to overthrow the government.31
(e) General Violence against the state, either actual or contemplated, is not
a necessary element of the crime.32 The act of high treason may be committed
either within or outside the territory of the Republic of South Africa.33
7 Unlawfulness It is this element of the crime which prevents a member of
an opposition party, who strives for a change of government or of the consti-
tution in a lawful, constitutional way, from committing high treason.34 An act
which would otherwise amount to treason may be justified by coercion, pro-
vided the circumstances are such that the rules governing this defence are com-
plied with.
8 Intention The intention which must accompany the act can be described as
the definitive element of high treason. It is known as animus hostilis or hostile
intent.35
________________________

21 Vermaak (1900) 21 NLR 204 (count 15); Randelhoff (1907) 22 NLR 59.
22 Dohne (1901) 22 NLR 176.
23 Bester (1900) 21 NLR 237 239; clause 2(2)(b) of the bill mentioned and quoted supra fn 2.
24 De Wet 1915 OPD 157. (The rebellion of 1914.)
25 Phillips (1896) 3 OR 216 (the Jameson raid into the Transvaal).
26 Erasmus 1923 AD 73; Viljoen 1923 AD 90.
27 Erasmus supra 89, where Kotzé JA speaks of the overthrow in totum vel pro parte of the
existence or independence of the state.
28 D 48 4 1; Moorman 1 3 6; Voet 48 4 3; Endemann 1915 TPD 142 147.
29 Leibbrandt supra; Lubisi 1982 3 SA 113 (A) 124F.
30 Tsotsobe 1983 1 SA 856 (A); Lubisi supra and cf Mange 1980 4 SA 613 (A).
31 Passtoors (unreported, WLD 15.05.1986), discussed by Snyman 1988 SACJ 1 ff.
32 Mayekiso 1988 4 SA 738 (W) 751D.
33 Strauss supra 937; Neumann 1949 3 SA 1238 (Sp Ct) 1248–1249.
34 Banda 1990 3 SA 466 (B) 474.
35 On animus hostilis see D 48 4 11; Voet 48 4 3; Matthaeus 48 2 2; Moorman 1 3 2, 4; 1 4 3;
Erasmus 1923 AD 73; Viljoen 1923 AD 90 92, 97; Christian 1924 AD 101 105; Gomas
1936 CPD 225 228; Leibbrandt 1944 AD 253 278 ff; Banda 1990 3 SA 466 (B) 474–479.
 CRIMES AGAINST THE STATE 305

All authorities agree that hostile intent is present if it is X’s intention to over-
throw the state itself.36 For the purposes of high treason the government is com-
pletely identified with the state,37 therefore, X acts with hostile intent if she
intends to overthrow the government unlawfully.
What is the position if X commits her act not with the intention of overthrow-
ing the government, but in order to achieve a goal which seems to be less serious,
such as merely to endanger the state’s security or independence, or merely to
coerce the state (government) to adopt a certain course of action? In Erasmus38
the Appellate Division rejected the narrow interpretation of hostile intent,
according to which such intent must be limited to an intention to overthrow the
government; instead, the court accepted a broader interpretation of the term,
according to which the meaning of hostile intention may include an intention to
achieve a goal which may at first glance appear to be less drastic or dangerous,
as explained above.

A fair interpretation of the relevant authorities is that hostile intent com-

prises the following, namely an intention (unlawfully) (a) to overthrow the
government of the Republic; (b) to coerce the government by violence into
any action or inaction; (c) to violate, threaten or endanger the existence, in-
dependence or security of the Republic; or (d) to change the constitutional
structure of the Republic.39

It is submitted that although violence is not a general prerequisite for a con-

viction of this crime,40 it ought to be required where X has the intention as
described in (b) above, otherwise the definition of the crime would be too wide
and vague. A hypothetical example of an act committed with the intention of
coercing the government into a certain course of action is where X and her co-
perpetrators arrest high-ranking government officials (such as cabinet ministers),
hold them hostage and threaten to kill them if the government refuses to yield
to certain demands of X such as to release certain prisoners from gaol.41 A hypo-
thetical example of an act committed with the intention of unlawfully changing
the constitutional structure of the Republic, is where X commits an act aimed at
replacing a democratic, multi-party form of government set out in the consti-
tution, with a dictatorship, without achieving such a transformation in a consti-
tutional way, that is, without first obtaining in an election or a referendum the
consent of the population to such a change.
________________________

36 Voet 48 4 3; Moorman 1 3 4, and generally all the authorities referred to in the previous
footnote.
37 Leibbrandt supra 280, 281; Zwane (3) 1989 3 SA 253 (W) 258; Banda 1990 3 SA 466
(B) 474I–J.
38 1923 AD 73.
39 Matthaeus 48 2 2 9; Moorman 1 3 2, 18, 19; Van der Linden 2 4 2; De Wet 1915 OPD
157 158; Erasmus 1923 AD 73 82, 88; Wenzel 1940 WLD 269 271; Leibbrandt 1944 AD
253 261, 280; Neumann 1949 3 SA 1238 (Sp Ct) 1263; Zwane (3) 1989 3 SA 253 (W)
259–260; Banda 1990 3 SA 466 (B) 479. See also cl 2(1) of the bill quoted supra fn 1.
40 Mayekiso 1988 4 SA 738 (W) 751D.
41 Cf Erasmus 1923 AD 73, in which X did not have the intention to overthrow the govern-
ment, but only to coerce the government to yield to their demands in an industrial dispute.
306 CRIMINAL LAW

X’s motive must not be confused with her intention. Her motive (ie, the ultim-
ate aim of her conduct) may be to create a society or a constitution which in her
opinion is more just than the existing one, but this will not avail her, if, in fact,
she harbours a hostile intent, as described above.42
9 Conviction of attempt, conspiracy, incitement, or of being an accomplice
or accessory after the fact is unlikely The state need not actually be over-
thrown before high treason is committed. If it were a requirement for the crime
that the state must cease to exist or lose its independence through the act, it
would be impossible to commit the completed crime, because there would then
be no state or government left to prosecute such an “act of high treason”. All
acts of high treason are essentially attempts to destroy the existence, independ-
ence or safety of the state. These acts are nevertheless punishable as completed,
and not attempted, high treason.
It is, therefore, difficult to envisage a case which would amount to only at-
tempted high treason. One can think of only one example in which X might be
convicted of attempted high treason: this is where X commits a treasonable act
(such as attacking a police station with rocket launchers) whilst under the im-
pression that she owes allegiance to the state, whereas she in fact owes no
allegiance to the state. This would be a case of attempting to commit the impos-
sible.43 This example is, however, exceptional. If one disregards this rather
theoretical possibility and concentrates on the typical case which serves before
the courts, one must conclude that in practice attempted high treason virtually
never occurs.44
Because of the wide definition of the crime not only attempt, but also con-
spiracy and incitement to commit high treason are unlikely to occur in practice.
With the exception of the unusual example mentioned above (where X wrongly
thinks that she owes allegiance) such acts are simply acts of high treason.45 For
the same reason no difference is made in high treason between perpetrator,
accomplice and accessory after the fact, because every person who, with hostile
intent, assists in the perpetration of the crime, whether before or after the event,
complies with the wide definition of the crime.46
10 Punishment Until 1997 a court could impose the death sentence upon
somebody convicted of high treason, but in that year section 277(1)(b) of the
Criminal Procedure Act, which provided for the imposition of the death sen-
tence, was repealed by Act 105 of 1997. The term of imprisonment which a
court may impose upon a conviction of high treason is discretionary.
11 Effect of Bill of Rights on existing legal provisions relating to high
treason There is a close relationship between the definition of high treason
________________________

42 Leibbrandt supra 281; Lubisi 1982 3 SA 113 (A) 124H; Zwane (3) 1989 3 SA 253 (W)
257B; Banda 1990 3 SA 466 (B) 476B–C.
43 This would be a case where the impossibility resides in the subject – see supra VIII B 8.
44 Wenzel 1940 WLD 269; Banda 1990 3 SA 466 (B).
45 Leibbrandt supra 273, 288, 289 in which it was held that the signing of a blood oath to
overthrow the government is, in itself, high treason; Zwane (3) supra 256F–G; Banda supra
474C–F.
46 Adams 1959 1 SA 646 (Sp Ct) 660–661; Banda supra 474F.
 CRIMES AGAINST THE STATE 307

applicable in a particular state and the form of government of such a state. The
provisions of Roman-Dutch law relating to high treason were created in Rome
about two thousand years ago, during a time when the form of government in
Rome was strictly autocratic. These provisions were created to protect and
enhance the autocratic form of government of the time. The writers on Roman-
Dutch law lived for the most part at a time when the form of government was
likewise autocratic, and these writers were accordingly content simply to accept
uncritically the Roman-law provisions relating to perduellio (high treason). The
principles relating to high treason thus set out above are the principles which
applied in South Africa until the coming into operation of the Constitution of
1996.
The vaguer the definition of an element of a crime, the more difficult it be-
comes for a legal subject to ascertain beforehand what concrete conduct falls
within the ambit of the crime. In this way the important ius certum rule of the
principle of legality, which is linked to an accused’s right to a fair trial,47 is
infringed.
What is disconcerting about the definition of the crime set out and discussed
above, is the vague, nebulous nature of certain aspects of the definition, such as
the rule that any conduct committed with the intent to threaten or endanger the
independence or security of the state (by which is meant the government)48 con-
stitutes high treason. It is quite conceivable that a government may resort to this
aspect of the definition of the crime as a pretext for suppressing activities it per-
ceives to be a threat to its future. In this way basic rights such as the right to
freedom of expression,49 the right to assemble or to demonstrate,50 and the right
to make political choices freely51 may be prejudiced. Intentionally to omit to pay
income tax (or even merely to pay it timeously) is an example of conduct which
is ostensibly far removed from what would ordinarily be regarded as treasona-
ble conduct. Yet, can conduct such as this not conceivably be construed as an
act aimed at endangering the independence or security of the government?
It is not contended that the whole crime of high treason is unconstitutional or
has no right of existence. Any self-respecting state will introduce measures to
protect its continued existence and to combat by way of the criminal sanction
efforts aimed at overthrowing the constitution or the body politic. There can be
no objection to regard acts such as waging war against the Republic, providing
aid to an enemy waging war against the Republic, unlawfully disclosing mili-
tary secrets to the enemy or attempting to overthrow the lawful government by
force, as treasonable acts.
A possible way of changing the common-law definition of high treason given
above52 in order to render it compatible with the Constitution, is to change the

________________________

47 S 35(3), especially 35(3)(a) and (l) of the Constitution of 1996. On the ius certum rule of
the principle of legality, see supra I F 9.
48 Supra par 8.
49 S 15(1) and 16(1) of the Constitution.
50 S 17 of the Constitution.
51 S 19(1) of the Constitution.
52 Supra par 1.
308 CRIMINAL LAW

phrase numbered (c) in the definition, which contains so many vague concepts,
by the addition of the following words at the end thereof: “provided the conduct
is of such a nature that it there is a real possibility that it will seriously violate,
threaten or endanger the existence, independence or security of the Republic”.
(The reason why two words in the sentence have been italicised is merely to
draw attention to how the possibly overbroad expressions in the phrase may be
rendered constitutional.)

B SEDITION

1 Definition Sedition consists in unlawfully and intentionally:

(a) taking part in a concourse of people violently or by threats of violence
challenging, defying or resisting the authority of the state of the Re-
public of South Africa; or
(b) causing such a concourse.53

2 Elements of the crime The elements of the crime are the following: (a)
taking part in, or causing a concourse of people; (b) which is aimed at violently
(c) challenging, defying or resisting the authority of the state; (d) unlawfulness
and (e) intention.
3 Historical In Roman and Roman-Dutch law sedition or “oproer” was un-
doubtedly regarded as a form of crimen laesae maiestatis, but there is consider-
able contradiction amongst the Roman-Dutch writers on: (a) whether it formed
a separate crime eo nomine, and, if so, (b) in what way it differed from the other
species of crimen laesae maiestatis. Sometimes it was regarded as being the same
as high treason and at other times it was confused with public violence.54
4 Sedition and other crimes against the state It is now settled that sedition
constitutes a separate crime against the state. It differs from high treason in the
________________________

53 The definition is based on the definition of sedition contained in the “Bill to codify the
law relating to the common-law crimes of high treason, sedition and public violence”
drawn up in 1976 by the SA law commission (RP 17/1976) but which was not submitted
to parliament. See the remarks on this bill supra IX A 1 fn 1. This definition is a true
reflection of our common law, as will appear from the discussion which follows. It is
submitted that it is unnecessary to refer in the definition to the state’s maiestas, for the
reasons advanced supra IX A 4. In Twala 1979 3 SA 864 (T) 869 and Zwane (1) 1987 4
SA 369 (W) 374G–H the following “elements” of the crime were required: “A gathering
which is unlawful, with intent (not necessarily hostile) to defy or subvert the authority
(maiestas) of the state.” It is submitted that this cannot be accepted as a definition of the
crime, for reasons that will appear later in the discussion of the crime. See the criticism of
this definition of the crime by Snyman 1980 SALJ 14 17 ff.
54 Seditio is treated in D 48 4 as a form of crimen laesae maiestatis, and is illustrated by the
case of a number of people gathering in the city with weapons or sticks, or occupying
public places or temples: D 48 4 1. This illustration is repeated by the Roman-Dutch
writers. Voet 48 4 3 and Moorman 1 3 4 include sedition in their discussions of high trea-
son. Both Moorman 1 3 5 and Matthaeus 48 2 2 5 distinguish between the ringleaders and
inciters of the turba (crowd) on the one hand, and the other members of the turba on the
other: the people in the first category are guilty of high treason, but those in the latter cat-
egory are not. Matthaeus ibid seems to treat sedition as a form of high treason. Van der
Linden 2 4 5, however, treats sedition as a form of public violence.
 CRIMES AGAINST THE STATE 309

following respects: (a) For high treason a hostile intent (animus hostilis) as
defined above55 is required, whereas for sedition only an intention to resist or
challenge the authority of the state is required.56 (b) High treason can be
committed by one person, whereas sedition can be committed only by a number
of persons acting together. (c) High treason can be committed only by some-
body who owes allegiance to the Republic, whereas sedition can be committed
even by somebody who owes no such allegiance. Sedition differs from public
violence in that it is aimed at the authority of the state, whereas public violence
is aimed at public peace and tranquillity.57
The interests protected by the three crimes of (a) high treason, (b) sedition and
(c) public violence, namely (a) the existence, independence and safety of the
state, (b) the authority of the state and (c) public peace and tranquillity respect-
ively, are sometimes difficult to distinguish from one another, and, therefore
overlapping of these offences is not uncommon. Sedition, for example, often
involves a disturbance of public peace, order and tranquillity, and an offender
may then be charged with either of these two crimes. The arbitrary nature of the
distinction between high treason and sedition is particularly evident if one con-
siders that challenging the state’s authority can in all probability not be divorced
from acts by which the government is coerced into a certain line of action or
which threaten its safety. If this is so, then there is no difference in this respect
between the two crimes.58
5 Number of persons taking part Sedition can be committed only if a
number of people gather together or, as it is sometimes expressed, if there is a
“concourse of persons”.59 In Twala60 the view was expressed that even two per-
sons are sufficient to commit the crime. It is submitted that more than two
people are required. If one reads the authorities carefully, it is clear that a mere
unlawful gathering of a number of people – especially when there are only two
people – falls short of what is understood as sedition in our common law. Some-
thing more sinister, menacing or threatening, definitely involving more than just
two persons, is required.61 It is neither possible nor feasible to specify, as a re-
quirement, a certain minimum number of persons: the precise number of people
depends upon circumstances such as time and place and the behaviour and
demands of the persons gathered together. It is best simply to speak of an un-
specified number of persons, and to keep in mind that Matthaeus62 required at
least ten.
________________________

55 Supra IX A 8.
56 Endemann 1915 TPD 142 147; Viljoen 1923 AD 90 92, 97.
57 Viljoen supra 94, 98; Twala supra 868. As to public violence, see infra IX C.
58 Viljoen supra 94; Malan 1915 TPD 180 183, and see Snyman 1980 SALJ 14 19.
59 Endemann supra 147, 151; Malan supra 185.
60 1979 3 SA 864 (T) 869F.
61 Matthaeus 48 2 2 5 speaks of a “tumultus”, “turba” or “coetus multitudinis”; Van der
Linden 2 4 5 of “oproer”; Moorman 1 3 4 of “toevloet van volk tot oproer”, and Dam-
houder 63 of “commotie”. In Endemann supra 147, 151 the court spoke of “a concourse
of people”, or “something in the nature of an insurrection” (152). In Viljoen supra 98 the
Appellate Division described the crime as “a tumult or commotion” or “a rebellion”. See
the discussion by Snyman 1980 SALJ 14 20–21.
62 48 2 2 5.
310 CRIMINAL LAW

6 Violence or threats of violence A reasonable interpretation of our author-

ities is that the gathering of people must be accompanied by violence or threats
of violence.63 The view expressed in Endemann,64 Twala65 and Zwane66 that vio-
lence is not a necessary requirement for sedition cannot be endorsed. If people
gather unlawfully but disperse peaceably at the request of the police they can
hardly be guilty of sedition. It is submitted that the act must be accompanied by
actual or threatened violence in order to amount to sedition. If one carefully con-
siders the examples of sedition mentioned in the authorities, as well as the cases
of sedition in our case law, it is clear that the acts were always accompanied by
real or threatened violence.67 The view of the Transvaal court in the three cases
cited, that sedition need not be accompanied by violence, is in conflict with the
common-law sources already referred to and leads to the conclusion that gather-
ings may amount to sedition merely because they are unlawful or aimed against
the government. One can, however, agree with the view expressed in Zwane
(1) 68 that the gathering need not necessarily be riotous.
7 Challenging the state authority The mere fact that a number of people
gather with the intention of committing a crime or of breaking the law is not yet
sufficient to constitute sedition; for the crime to be committed there must be
mutual conduct by a group of persons whereby the authority of the state is chal-
lenged.69 Although it is mostly the case, the defiance of the state need not neces-
sarily take place openly in the sense that the mutual defiance of the state takes
place in the face of the police.70 In Zwane (3) 71 the court held that the state could
charge the accused with sedition on the strength of the following facts: they set
up a so-called “people’s court” in which they unlawfully tried and sentenced
other people, thereby subjecting them to an unlawful judicial system in de-
fiance of the state’s authority to enforce its laws by means of the official, lawful
judiciary, police, prosecuting and other authorities empowered to carry out
sentences.
8 Causing a concourse A peculiarity of the crime is that not only those who
take part in the gathering but also those who incite, instigate or arrange it are
guilty of the crime, provided that the gathering or “riot” does in fact follow upon
________________________

63 Van der Linden 2 4 5 requires for sedition “het aanwenden van middelen van geweld en
dwang”. D 48 4 1, which exercised such a strong influence on our common-law writers,
spoke of “quo armati homines cum telis lapidibusve in urbi sint”. See the echoes of this text
in Matthaeus 48 2 2 5 and Damhouder 63. Even the illustration in Damhouder’s discussion
of sedition portrays an armed fight. Hunt-Milton 53 likewise requires “some element of vio-
lence or threats of violence”. Clause 3 of the bill referred to supra fn 1 requires “persons
violently resisting or defying the authority of the Republic”.
64 1915 TPD 142 147.
65 1979 3 SA 864 (T) 869G. For criticism of this aspect of the decision, see Snyman 1980
SALJ 14 21–22.
66 Zwane (1) 1987 4 SA 369 (W) 372G–H; Zwane (3) 1989 3 SA 253 (W) 261C.
67 See eg the references to violence or threatened violence mentioned in Zwane (3) 1989 3
SA 253 (W) 291B–C, 297C–D, 298D–G, 308B, 315I–317D.
68 1987 4 SA 369 (W) 374G.
69 Zwane (3) 1989 3 SA 253 (W) 261E.
70 Zwane (3) 1989 3 SA 253 (W) 261F.
71 1989 3 SA 253 (W).
 CRIMES AGAINST THE STATE 311

the incitement or instigation.72 It is for this reason that the definition of the crime
which was given above included the “causing of a gathering”. If, however, one
incites or conspires with others to hold a gathering, but the gathering does not
materialise, one can be charged with incitement or conspiracy to commit
sedition.73
9 Unlawfulness Participation in the gathering, like the gathering itself, must
be unlawful. The unlawfulness may be excluded by inter alia coercion or con-
sent by the state, for example, where the participant is a “police spy”. It is imma-
terial whether the gathering takes place in a public or a private place.74
10 Intention The aim of the people taking part in the gathering or causing it
must be to defy, challenge or resist the authority of the state.75 For the purposes
of this crime the authority of the state is not limited to its executive arm but
may also include its judicial organs.76 Each individual member of the gathering
must know that the other participants, or a substantial number of them, have the
same aim in mind, because the participants must act “in concert”.77 Of course, it
is not required that they should in fact succeed in breaking down the authority
of the state: the intention to do so, or to challenge or resist the state’s authority,
is sufficient.

C PUBLIC VIOLENCE

1 Definition Public violence consists in the unlawful and intentional

commission, together with a number of people, of an act or acts which
assume serious dimensions and which are intended forcibly to disturb public
peace and tranquillity or to invade the rights of others.78

2 Elements of the crime The elements of the crime are the following: (a) an
act; (b) by a number of people; (c) which assumes serious proportions; (d)
which is unlawful and (e) intentional, including more specifically an intention
(e(i)) to disturb the public peace and order by violent means, or (e(ii)) to
infringe the rights of others.
3 Interest protected It is chiefly by isolating and examining the interests
which the law seeks to protect in this crime that one is able to distinguish this
crime from other common-law crimes against the state. The interests protected
________________________

72 D 48 4 1; Damhouder 63; Matthaeus 48 2 5; Endemann supra 147, 152; Malan supra 185;
Viljoen supra 93; clause 3 of the bill referred to supra fn 2. Cf also Snyman 1980 SALJ
14 21. There must be a causal nexus between the incitement and subsequent riot – Malan
supra 184.
73 Endemann 1915 TPD 142 147; Malan 1915 TPD 180.
74 Twala 1979 3 SA 864 (T) 869F–G.
75 Endemann supra 147; Viljoen 1923 AD 90 97; Twala supra 869.
76 Zwane (1) 1987 4 SA 369 (W) 375–376.
77 Endemann supra 151.
78 A definition of the crime which substantially agrees with the one given in the text was
quoted with apparent approval in Mlotswha 1989 4 SA 787 (W) 794. See also Le Roux
2010 2 SACR 11 (SCA) par 5. For a definition which corresponds exactly with the one
given in the text, see Whitehead 2008 1 SACR 431 (SCA) par 38.
312 CRIMINAL LAW

here are public peace and tranquillity or, as it is sometimes expressed, “public
peace and security”.79 These interests may sometimes overlap with the interests
involved in other crimes against the state. A precise separation of the crimes is
not always possible. If the concerted action by a number of people also impairs
or challenges the authority of the state, sedition is committed, and if the acts are
accompanied by a hostile intent, as this term is understood in high treason, then
the latter crime is committed.80 Section 17 of the Constitution provides that
everyone “has the right, peacefully and unarmed, to assemble, to demonstrate,
to picket and to present petitions”. However, if the demonstration does not take
place peacefully, as provided in section 17, the participants in the demonstration
may render themselves guilty of public violence.
4 Overlapping with other crimes Public violence overlaps with a number
of other crimes such as assault, malicious injury to property, arson and rob-
bery.81 At least one of these crimes is usually committed in the course of the
commission of public violence,82 yet because of the dangerous dimensions of the
conduct X is charged, not with one of these crimes, but with public violence.
5 Number of persons taking part Public violence, like sedition, cannot be
committed by a single person acting on her own. Public peace and tranquillity
must be disturbed by a number of people acting in concert.83 It is impossible to
specify the minimum number of people required. This will depend upon the
circumstances of each case, having regard to the character and dimensions of the
disturbance of the peace. Thus, in some cases three to five persons have been
held to be sufficient to commit the crime,84 whilst in other cases where, for
example, the quarrel was of a restricted nature and duration and the disturbance
of the peace did not take on serious dimensions, six, eight and even ten people
have been considered insufficient.85
6 Acting in concert The participants in the conduct disturbing the peace
must act in concert, that is, with a common purpose.86 Once it is established that
X knowingly took part in a disturbance which had as its aim the endangering of
public peace or security it is unnecessary to prove specifically what particular
act of violence was committed by her or by each of the individual participants.87
The ordinary principles relating to the application of the doctrine of common
purpose also apply to this crime.88 No premeditation or preconceived plan is
required.89 The common purpose may evolve spontaneously or tacitly.

________________________

79 Salie 1938 TPD 136 139.

80 Viljoen 1923 AD 90 98.
81 Tshayitsheni 1918 TPD 23 29.
82 Cele 1958 1 SA 144 (N) 153H; Kashion 1963 1 SA 723 (R) 724G.
83 Ndaba supra 151–152, 156; Cele supra 152F–G.
84 Terblanche 1938 EDL 112 (5 regarded as sufficient); Clarke 1961 R and N 652 (3 to 4
persons regarded as sufficient).
85 Mcunu 1938 NPD 229 (6 regarded as insufficient); Salie supra (8 regarded as insuffi-
cient); Nxumalo 1960 2 SA 442 (T) (10 regarded as insufficient).
86 Mei 1982 1 SA 299 (O) 302–303.
87 Wilkens 1941 TPD 276 289; Lekoatha 1946 OPD 6 10.
88 Le Roux 2010 2 SACR 11 (SCA) par 14.
89 Ndaba 1942 OPD 149 151–152; Cele supra 152F–G.
 CRIMES AGAINST THE STATE 313

7 Instances of conduct constituting public violence The following are in-

stances of conduct constituting public violence: faction fighting,90 violent resist-
ance to the police by a mob91 (provided the police are acting lawfully);92 rioting;93
forcible coercion by strikers of other workers,94 and the breaking up and taking
over of a meeting.95
The conduct may take place on either public or private property.96 It is not
necessary that the participants be armed.97 There must be violence or threats of
violence.98 The crime can be committed even though there is no actual disturb-
ance of public peace or security, or invasion of the rights of others. It is suf-
ficient if the conduct is intended to disturb the peace or invade rights.99
8 Serious dimensions The mere disturbance of the peace, or a threatened or
intended disturbance of the peace even by a number of people, is not sufficient
to constitute the crime.100 The violence or intended violence by the group must
further assume serious or dangerous dimensions.101 Though vague, this cri-
terion is necessary to prevent abuse of the crime. It may be abused by using it
as a convenient way of bringing quarrelsome people to justice, when several of
them were involved and identification was difficult.102
The safety of persons other than the participants is relevant here, and their
safety will be threatened only if the disturbance of the peace is of a serious
nature. Various factors may cause the conduct to assume serious dimensions.
One of the most important has already been mentioned above, namely the num-
ber of people involved.103 Mere weight of numbers is not, however, conclusive.
Other factors include the time, locality and duration of the fight, the cause of
the quarrel, the status of the persons engaged in it, the way in which it ended,
whether the participants were armed or not, and whether there were actual
assaults on people or damage to property committed.104
9 Unlawfulness Both the acts of the group regarded as such and the partici-
pation of the individual in the group must be unlawful. The individual’s partici-
pation may, for example, not be unlawful if she was coerced into joining the
________________________

90 Salie 1938 TPD 136; Ngubane 1947 3 SA 217 (N); Xybele 1958 1 SA 157 (T).
91 Segopotsi 1960 2 SA 430 (T); Samaai 1986 4 SA 860 (C).
92 Ndwardwa 1937 TPD 165 167.
93 Dingiswayo 1985 3 SA 175 (Ck); Khumalo 1991 4 SA 310 (A).
94 Cele 1958 1 SA 144 (N).
95 Wilkens 1941 TPD 276; Claassens 1959 3 SA 292 (T).
96 Cele supra 152F; Segopotsi supra 436–437.
97 In Wilkens supra eg the accused were unarmed.
98 Cele supra 152G; Mei 1982 1 SA 299 (O) 302B–C.
99 Cele supra 153C–E; Xybele supra 159A; Segopotsi 1960 2 SA 430 (T) 433E. Accord-
ing to Xybele supra 159 and Segopotsi supra 433 a mere show of strength, which must
clearly lead to general fear and clashes, is sufficient to constitute the crime.
100 Salie 1938 TPD 136; Nxumalo 1960 2 SA 442 (T).
101 Cele supra 152; Nxumalo supra 444E–F; Le Roux 2010 2 SACR 11 (SCA) par 14.
102 Salie supra 139–140.
103 Supra par 5.
104 On these factors in general, see Salie supra 138–139; Ngubane supra 218–219; Usayi
1981 2 SA 630 (ZS) 633H–634A; Mlotswha 1989 4 SA 787 (W).
314 CRIMINAL LAW

group, and the group’s conduct may, for example, be justified by private
defence.105
10 Intention The individual participant must be aware of what the group is
doing or aiming to do, and her participation in the group must be intentional.106
There must also be a common purpose amongst the members of the group to
forcibly disturb public peace and tranquillity.107

________________________

105 Mathlala 1951 1 SA 49 (T) 57–58.

106 Kashion 1963 1 SA 723 (R) 727.
107 Supra pars 5 and 6.
 CHAPTER
X

CRIMES AGAINST THE ADMINISTRATION

OF JUSTICE

A CONTEMPT OF COURT

1 Definition Contempt of court consists in unlawfully and intentionally

(a) violating the dignity, repute or authority of a judicial body or a judicial
officer in his judicial capacity; or
(b) publishing information or comment concerning a pending judicial pro-
ceeding which constitutes a real risk of improperly influencing the
outcome of the proceeding or to prejudice the administration of justice
in that proceeding.1

2 Elements of the crime The elements of the crime are the following: (a) (i)
the violation of the dignity, etcetera of the judicial body or judicial officer; or
(ii) the publication of information or commentary concerning a pending judicial
proceeding, etcetera; (b) the administration of justice by the courts; (c) unlawful-
ness; and (d) intention.
3 Unusual features of crime The crime is characterised by the following
unusual features:
• Firstly, contempt of court manifests itself in a variety of forms, some of which
have requirements all of their own (eg the requirement in cases of publi-
cation of information which has the tendency to prejudice the outcome of a
case that the case must still be pending (sub iudice)). Because of this the
crime can in a sense be subdivided into a number of “sub-offences”, which
________________________

1 In the previous edition of this book part (b) of the definition read as follows: “publishing
information or comment concerning a pending judicial proceeding which has the tendency
to influence the outcome of the proceeding or to interfere with the administration of just-
ice in that proceeding”. This former definition in this book was quoted with apparent
approval in Bresler 2002 2 SACR 18 (C) 24–25 and Moila 2005 2 SACR 517 (T) 533c.
The reason for changing the wording of part (b) is to be found in the judgment of the
Supreme Court of Appeal in Midi Television (Pty) Ltd v Director of Public Prosecutions
(Western Cape) [2007] 3 All SA 318 (SCA), discussed infra par 8.

315
316 CRIMINAL LAW

often have requirements of their own. These particular forms of the crime
will be discussed separately below. In fact, the expression “contempt of
court” can be regarded as a collective noun for a number of different crimes
that have certain features in common.
• Secondly, certain cases of contempt of court are dealt with, not by the ordin-
ary criminal processes, but by civil law. These are cases where there has
been non-compliance with a court order in a civil case, and where the liti-
gant in whose favour the court has made the order seeks to implement it by
requesting the court to punish the defaulting party for contempt of court if
the order is not complied with. It has now been settled, however, that these
so-called cases of “civil contempt” also constitute the crime of contempt of
court: the Director of Public Prosecutions is free to charge a person with
contempt of court in these cases too.
• A third peculiarity of this crime is that its perpetration may sometimes call
for a drastic procedure in terms of which a judge or magistrate may convict
and punish somebody for contempt of court committed inside the court in
the presence of the judge or magistrate.
During the period after (and even shortly before) the introduction of the new
Constitution with its Bill of Rights, the field of application of this crime had
shrunk, especially because of the right to freedom of expression and of assembly
and demonstration enshrined in sections 16 and 17 of the Constitution. Conduct
such as demonstrations in favour of a certain verdict in front of courts, or criti-
cism of courts and judges seem, nowadays, not to lead to prosecutions for con-
tempt, unless there are exceptional circumstances. As a result the older case law
dealing with this crime, which tended to overprotect the judiciary, should be
read with caution and reservation, and a readiness to adapt the law to the new
human-rights dispensation in terms of the new Constitution.
4 Rationale of the crime There is a difference between an attack on the dig-
nity or reputation of a judicial officer in his private capacity, and an attack on
his dignity or reputation in his official capacity. Only the latter conduct, being a
public injury and not just a private injury, can amount to contempt of court.2 The
rationale of the crime is not to vindicate the dignity of the individual judicial
officer but to protect the administration of justice. If the dignity and authority of
a court or judicial officer are undermined, the public’s respect for the adminis-
tration of justice and, thus, for the whole legal order, suffers. The courts’ very
existence and functioning are, after all, in the interests of the whole community.3
Furthermore, courts of law must be able to come to a proper decision without
improper or extraneous influences.
________________________

2 Tromp 1966 1 SA 646 (N) 652G–H.

3 On the rationale of the crime, see Tobias 1966 1 SA 656 (N) 659–660; Van Niekerk 1970
3 SA 655 (T) 657; Van Niekerk 1972 3 SA 711 (A) 720H; Argus Printing and Publishing
Co Ltd v Esselen’s Estate 1994 2 SA 1 (A) 29; Mamabolo 2001 1 SACR 686 (CC) pars
18, 19, 24, 25, 45; Bresler 2002 2 SACR 18 (C) 25. It is important not only that a court
should be impartial, but also that it should “be universally thought so” (Attorney-General
v Crockett 1911 TPD 893 931; Attorney-General v Baker 1929 TPD 996 999) and, there-
fore, attempts to influence it extraneously are prohibited.
 UNLAWFULNESS (JUSTIFICATION) 317

5 Classification of different types of conduct constituting contempt The

crime can be committed in many ways. The following is a convenient way of
classifying the different ways in which the crime can be committed:

Contempt
of court:

Contempt Contempt
in facie curiae ex facie curiae

Referring to a Not referring to a

pending case pending case

Commentary on Scandalising the court

pending case
Failure to comply with
order of court
Interference with
witnesses or court
Obstructing court
officials
Failing to appear in court
Simulating court
processes

These different ways in which the crime can be committed will now be discussed.
6 Contempt in facie curiae It is convenient firstly to differentiate between
contempt in facie curiae and contempt ex facie curiae. Contempt of court in
facie curiae means contempt of court committed “in the face of the court”, in
other words in the presence of the presiding officer (judge or magistrate) while
the court is in session. Contempt ex facie curiae means contempt committed
“outside the face of the court”, in other words not in the presence of the pre-
siding officer while the court is in session.
Contempt of court in facie curiae is committed when a person who is inside
the court insults the presiding judicial officer (judge or magistrate) or otherwise
misbehaves in a manner calculated to violate the dignity of the court or judicial
318 CRIMINAL LAW

officer while the court is engaged in its proceedings or, as it is sometimes said,
“in open court”.4 The wrongful conduct must be intentional.5
A peculiarity of this form of the crime is that the presiding officer (judge or
magistrate) has the power summarily to act against the alleged offender. In the
case of other crimes there is usually a lapse of time – at least months – between
the commission of the alleged crime and the trial of the alleged offender. How-
ever, if somebody commits contempt in facie curiae, the presiding officer may
there and then act against him by subjecting him to an immediate trial for con-
tempt of court and, if he is convicted, imposing a punishment upon him. The
High Court may do this by virtue of its inherent common-law powers,6 whereas
the Magistrate’s Court has this power by virtue of the provisions of section 108
of the Magistrates’ Courts Act.7 Failure to obey an order to appear in court is
not contempt in facie curiae.8 Before the presiding officer can convict X, he
must first inform X of the misconduct allegedly constituting the offence.9 X
should be afforded an opportunity to advance reasons why he should not be
convicted, at least where his action is not so unequivocal as to show that he
undoubtedly intended to be contemptuous.10
Some illustrations of contempt in facie curiae are: shouting at witnesses
while cross-examining them,11 for a member of the public who is in the court to
________________________

4 See Magerman 1960 1 SA 184 (O) 189D–E, where s 108 of the Magistrates’ Courts Act
32 of 1944, dealing with contempt in facie curiae, was construed as envisaging the pres-
ence “in or near the court” of the person behaving contemptuously. For a discussion of
the meaning of the phrase “in facie curiae”, see also Butelezi 1960 1 SA 284 (N) 285–
286. The mere failure of a legal representative to appear at the court on the day of the trial
does not amount to contempt in facie curiae – Mbaba 2002 1 SACR 43 (E).
5 Clark 1958 3 SA 394 (A) 400; Pitje 1960 4 SA 709 (A). On the intention requirement for
this crime generally, see infra par 20. Although the terms “wilful” and “deliberate” are the
terms usually employed by the courts, this does not detract from the general rule that
intent may also be present in the form of dolus eventualis – Lavhengwa 1996 2 SACR
453 (W) 465–466.
6 Clark supra.
7 Act 32 of 1944; Nene 1963 3 SA 58 (N) 59–60; McKenna 1998 1 SACR 106 (C). A
Magistrate’s Court does, however, have jurisdiction to hear a charge of the common law
crime of contempt of court, committed ex facie curiae, brought before it by way of sum-
mons – Tobias 1966 1 SA 656 (N); Mabaso 1990 1 SACR 675 (T) 677. A magistrate does
not have the power to force a legal representative to continue to defend an accused if the
legal representative withdraws from the case and, therefore, a failure by the legal repre-
sentative to continue with the defence as instructed by the magistrate does not constitute
contempt – Van Wyk 2000 2 SACR 693 (O) 700b–c. The crime created in s 108 is in real-
ity wider than the common-law crime, since the mere “misbehaviour” in the place where
the court is held is also punishable in terms of s 108 – Lavhengwa 1996 2 SACR 453 (W)
465–466.
8 Magerman 1960 1 SA 184 (O) 189; Nene 1963 3 SA 58 (N) 59–60. Neither does the mere
failure of a legal representative to appear in court after a postponement of a case constitute
contempt in facie curiae. Conduct of this nature may be punished as contempt ex facie
curiae – Canca 2000 2 SACR 284 (E). A refusal of an attorney to re-enter the courtroom
when instructed to do so by magistrate is similarly not contempt in facie curiae –
Mathoho: in re da Silva Pessegueiro v Tshinanga 2006 1 SACR 388 (T).
9 Mkize 1962 2 SA 457 (N) 461; Moshoeu 2007 1 SACR 38 (T).
10 Shapiro 1987 2 SA 482 (B) 487; Pillay 1990 2 SACR 410 (CkA) 418; Nel 1991 1 SA
730 (A) 750A–B.
11 Benson 1914 AD 357, and cf Zungo 1966 1 SA 268 (N).
 UNLAWFULNESS (JUSTIFICATION) 319

shout remarks at the magistrate;12 conducting a case while under the influence
of liquor,13 continually changing one’s seat and talking in court,14 grabbing a
court document and tearing it up,15 shouting in court and swearing at the magis-
trate;16 laughing at a magistrate;17 and entering the court carrying posters, shout-
ing slogans and making defiant statements.18 However, merely “snoozing” in
court is not necessarily contempt: it may amount to merely “a trivial breach of
court etiquette”.19 It has also been held that if X has merely forgotten to switch
off her cell phone while in court, and the cell phone rings, she does not commit
the crime; in this type of situation X’s lack of guilt is more the result of absence
of intention.20
The courts have held that the power of a court summarily to punish X in cases
where this form of the crime is committed is essential in order to uphold the
dignity and authority of the court,21 but they have also emphasised that this
power is an extremely drastic weapon, which should not be resorted to lightly
but with only the utmost care and circumspection.22 In cases of this nature the
presiding officer is prosecutor, witness and judge all at the same time. The
accused is normally undefended and the hearing is usually charged with an
emotional atmosphere. Trivial contempt is best ignored,23 and affording X an
opportunity to apologise against withdrawal of the charge of contempt may
often uphold the dignity of the court just as well as a conviction for contempt.24
If an unrepresented accused is under the influence of liquor in court, it is advis-
able not to continue with his trial, but rather to postpone the trial and to charge
the accused of contempt in the usual way. The reason for this is that one can
hardly expect an accused who is under the influence of liquor to defend himself.25
7 Constitutionality of punishing contempt in facie curiae Is the practice of
punishing a person summarily for contempt of court in facie curiae compatible
with the Constitution?
In Lavhengwa26 the Court (per Claassen J) examined this question thoroughly
and came to the following conclusions: There is a definite need in both the
Supreme and the Magistrate’s Courts for the power to punish contemptuous
conduct summarily.27 This summary procedure is necessary to prevent the flow
of court proceedings from being undermined. Thus, if a magistrate issues an
________________________

12 Solomons 2004 1 SACR 137 (C).

13 Duffey v Munnik 1957 4 SA 390 (T).
14 Nxane 1975 4 SA 433 (O).
15 Mongwe 1974 3 SA 326 (T); Poswa 1986 1 SA 215 (NC).
16 Ntsane 1982 3 SA 467 (T).
17 Poswa 1986 1 SA 215 (NC).
18 Senyane 1993 1 SACR 643 (O).
19 Nyalambisa 1993 1 SACR 172 (Tk) 177e.
20 Sonpra 2004 1 SACR 278 (T); Molapo 2004 2 SACR 417 (T).
21 Silber 1952 2 SA 475 (A) 480G; Nel 1991 1 SA 730 (A) 752H–J.
22 Sokoyi 1984 3 SA 935 (NC) 941–942; Nel supra 749g–h; Lizzy 1995 2 SACR 739 (W).
23 Mathoho: in re da Silva Pessegueiro v Tshinanga 2006 1 SACR 388 (T).
24 Tobias 1966 1 SA 656 (N) 666; Poswa 1986 1 SA 215 (NC) 220–221.
25 Nqula 2005 1 SACR 283 (E).
26 1996 2 SACR 453 (W).
27 474h–i.
320 CRIMINAL LAW

interlocutory order (such as an order that a certain question put to a witness is

inadmissible) but the legal practitioner appearing before him refuses to accept
the order, it is necessary for the magistrate to have the power to act summarily
against the practitioner.28
As far as the argument that in these types of cases the magistrate is both wit-
ness, prosecutor and judge is concerned, the court held that the magistrate’s
power to act summarily against an alleged offender in facie curiae does violate
X’s right to equal protection and benefit of the law,29 but that this violation is
reasonable and justifiable in an open and democratic society in terms of the
limitation clause in the Constitution.30
The court further held that the summary procedure is not a violation of X’s
right to be informed of the charge with sufficient detail to answer it,31 inter alia
because in practice X usually knows very well what his alleged misconduct is,
and also because the limitation clause32 may be applicable in this respect.33
Neither does the summary procedure infringe upon X’s right to be presumed
innocent and to remain silent,34 inter alia because no onus is placed upon X, and
also because the limitation clause would apply to any possible infringement.35
The court further held that the summary procedure does not necessarily vio-
late X’s right to the services of a legal practitioner,36 inter alia because it
depends on the circumstances of each case whether it is practical and affordable
for the state to afford X the services of such a practitioner.37 Lavhengwa’s case
was followed in later cases.38
8 Publication of information regarding a pending case From here the
discussion of this crime is devoted to instances of contempt of court committed
ex facie curiae. These instances can be subdivided into two groups, namely acts
which refer to pending cases and those that do not refer to any pending cases.
One of the most important ways in which contempt of court ex facie curiae
referring to pending cases is committed, is by the publication of information or
comment about a pending case.
This form of contempt is committed if a person publishes, either by the writ-
ten or the spoken word, information or comment about a case which is still
pending (sub iudice). The test applied previously in this type of contempt was
particularly wide: the test was whether the words published tended to prejudice
________________________

28 469–475.
29 S 9(1) of the Constitution.
30 S 36(1) of the Constitution.
31 S 35(3)(a) of the Constitution.
32 S 36(1) of the Constitution.
33 477–482. For a similar opinion, see Hunt-Milton 200. Cf also the Canadian decisions Re
Layne and the Queen (1985) 14 CCC (3d) 149, especially at 161, and Cohn (1985) 15
CCC (3d) 150.
34 S 35(3)(h) of the Constitution.
35 485–487.
36 S 35(3)(f) of the Constitution.
37 488–492.
38 Bresler 2002 2 SACR 18 (C); Solomons 2004 1 SACR 137 (C) 142d–e; Ntshwence 2004
1 SACR 506 (Tk).
 UNLAWFULNESS (JUSTIFICATION) 321

the outcome of the case.39 It was immaterial whether the statement complained
of had reached the ears of the tribunal, and, if so, whether the tribunal had in
fact believed or been influenced by it.40
The abovementioned wide test to determine whether contempt has been
committed, has been criticised, and in Midi Television (Pty) Ltd v Director of
Public Prosecutions (Western Cape)41 the Supreme Court of Appeal held that
this wide test to determine prejudice to the judiciary was unconstitutional, being
especially incompatible with the constitutional right to free speech. The court
accordingly introduced a new, narrower test to determine prejudice. According
to the court the words of the commentary will amount to contempt only if there
is a demonstrable relationship between the publication of the words and the
prejudice for the administration of justice;42 there must be a real risk of substan-
tial prejudice if the publication takes place.43 This narrower test must be wel-
comed as more fair than the previous wide test.
The existence of this form of contempt of court is not incompatible with the
provisions of section 16(1) of the Constitution, which provides for the right to
freedom of expression, including the freedom of the press and other media, as
well as the right to receive or impart information. Although the rule does in-
fringe on the right created in section 16(1), the infringement is reasonable and
justifiable in an open and democratic society, as provided in the limitation clause
in section 36(1) of the Constitution. The whole concept of a “fair trial” pre-
supposes a trial in which the court decides on the issues before it on the basis of
the evidence placed before it, and not on the basis of statements or opinions in
the media. Generally speaking, before the case has been finally disposed of by
the courts the media, therefore, ought not to have the right to publish infor-
mation on the case which would have a real influence on its outcome, but which
was not produced as evidence to the court hearing the case. “Trial by news-
paper” is and remains a real danger to a fair and impartial disposal of an issue
in the judicial process. If the present type of conduct were not punishable, a
newspaper would be free to “convict” an accused, as it were, whereas the court
may find her not guilty. The perception is then raised that the court’s finding is
wrong, whereas in reality it is correct.
Furthermore, even if one assumes that the judge or magistrate is capable of
leaving out of consideration information published in the press, and that he in
fact does so, there is still the further consideration that “justice must not only be
done, but must manifestly be seen to be done”. Parties to a case, and even out-
siders, must be satisfied that the court’s conclusion is based upon information laid
before the court in an admissible way only, and not upon information or com-
ment concerning the merits of the issue published in the media. Once the media
________________________

39 Van Niekerk 1972 3 SA 711 (A); Harber 1988 3 SA 396 (A).

40 Van Niekerk 1972 3 SA 711 (A) 724; Harber supra 420J–421A. In the latter case the
Appellate Division stated that the rule against the prejudging of issues in pending pro-
ceedings is not absolute, for a discussion in a law journal of legal issues decided in a case
on appeal would generally not constitute contempt of court; it would not tend to interfere
improperly with the administration of justice. See 422I, 423G–H.
41 [2007] 3 All SA 318 (SCA), discussed by Hoctor 2008 SACJ 101.
42 Par 16.
43 Par 19.
322 CRIMINAL LAW

is allowed to publish information and comment on a pending case, there will

always remain at least a suspicion in the mind of the public and of a party to the
case that the court, in coming to its conclusion, was influenced by outside factors.
9 Interference with witnesses or presiding officer X commits contempt of
court if he improperly influences or attempts to influence a judge, magistrate,
assessor, party to a case, complainant or accused, witness, interpreter or legal
representative in a case in the decision he has to make in the case, the evidence
he has to give, or generally the way in which he has to conduct himself during
the trial.44 The act may take the form of intimidating the person concerned,
bribing or attempting to bribe him, or privately communicating or attempting to
communicate with a judge or magistrate with the intention of influencing him
to act in a certain way or to come to a certain conclusion. However, peacefully
demonstrating outside a courtroom in support of a certain conclusion in a court
case being conducted inside the court, is nowadays in terms of the Constitution
of 1994 not regarded as contempt of court, but as a legitimate expression of free-
dom of speech.
10 Failure to appear in court According to the common law a person also
commits contempt of court if he has been summoned to attend a trial as witness
or accused but intentionally fails to appear at the court.45 However, it is more
customary to punish such conduct as contraventions of specific statutory
provisions.46
11 Scandalising the court From here the discussion deals with ways in
which the crime can be committed without there being any pending case. The
first such way to be discussed is the conduct known as “scandalising the court”.
This form of contempt is committed by the publication, either in writing or
verbally, of allegations which, objectively speaking, are likely to bring judges,
magistrates or the administration of justice through the courts generally into con-
tempt, or unjustly to cast suspicion on the administration of justice.47 Whether
the administration of justice was in actual fact brought into disrepute, is irrele-
vant. All that is required is that the words or conduct should have the tendency
or likelihood to harm.48 It does not matter whether the attack is directed at a
particular judicial officer or at the administration of justice through the courts
generally.49 To constitute contempt, an attack on an individual judge need not
necessarily be made in public. It is also committed if the judge is slandered in his
judicial capacity in a private communication to him (eg a letter), even though
no third party is aware of the communication.50
________________________

44 Attorney-General v Crockett 1911 TPD 893 927.

45 Keyser 1951 1 SA 512 (A); Cronje 1955 3 SA 319 (SWA) 320.
46 See ss 55 and 187–188 of the Criminal Procedure Act 51 of 1977 and s 5(2) of the
Magistrates’ Courts Act 32 of 1944.
47 Olivier 1964 3 SA 660 (N); Tobias 1966 1 SA 656 (N) 660G–H; Mamabolo 2001 1 SACR
686 (CC); Bresler 2002 2 SACR 18 (C) – a case in which X launched a racist attack upon
the magistrate, who belonged to a different racial group as himself. See also Moila 2005 2
SACR 517 (T) 533i–534a.
48 Mamabolo supra par 43.
49 Tromp 1966 1 SA 646 (N) 653C.
50 Attorney-General v Crockett 1911 TPD 893 927; Mans 1950 1 SA 602 (C) 605–606.
 UNLAWFULNESS (JUSTIFICATION) 323

Anything spoken or written imputing corrupt or dishonest motives or conduct

to a judge in the discharge of his official duty, or reflecting in an improper or
scandalous manner on the administration of justice, falls within the ambit of this
form of contempt.51 It has been held that this type of contempt is also commit-
ted by exhorting the judiciary to embark on a course of action which is in clear
conflict with its duties, for example, asking the judiciary to refuse to give credit
to a certain class of evidence, irrespective of its intrinsic merits.52
The courts emphasise, however, that every citizen and every news medium
such as a newspaper are at liberty to discuss the proceedings in a court, or the
general administration of justice by the courts, freely and openly. Such discus-
sion or debate in fact safeguards the public’s respect for and confidence in the
courts.53 The criticism or debate must, however, be conducted in a fair and
moderate manner, and the right to free discussion must not be abused by, for
example, unbridled vituperative utterances vilifying the judiciary or ridiculing
them.54 An honest and temperate expression of a dissenting opinion regarding,
for example, the perennial topic of inequality of sentences will not constitute
contempt of court.55
12 Punishing scandalising the court is constitutional – the judgment in
Mamabolo In Mamabolo 56 the Constitutional Court held that the punishment
of scandalising the court as a form of contempt of court is constitutional.
According to the judgment in Mamabolo, the judiciary has to have the trust
of the public, otherwise it cannot function properly. For this reason there must
be a special safeguard to protect the judiciary against vilification.57 What are
protected are not the private interests of the members of the court, such as their
individual feelings, their self-esteem, reputation or status, but the public interest,
and more particularly the public confidence in the administration of justice.58
The freedom to debate the merits of judgments or the affairs of the judiciary in
general does not mean that attacks, however scurrilous, can with impunity be
made on the judiciary. A clear line must be drawn between acceptable criticism
of the judiciary as an institution, and of its individual members, on the one
hand, and on the other hand statements that are downright harmful to the public
interests by undermining the legitimacy of the judicial process. The ultimate
object of punishing this form of contempt is that courts must be able to attend to
the proper administration of justice while having the confidence of the public.59

________________________

51 Torch Printing and Publishing Co (Pty) Ltd 1956 1 SA 815 (C) 819; Tobias supra
660G–H.
52 Van Niekerk 1972 3 SA 711 (A) 721–722.
53 Argus Printing and Publishing Co Ltd v Esselen’s Estate 1994 2 SA 1 (A) 25G–H;
Mamabolo 2001 1 SACR 686 (CC) pars 1, 27.
54 Van Niekerk 1970 3 SA 655 (T) 657; Van Niekerk 1972 3 SA 711 (A) 719–720; Moila
2005 2 SACR 517 (T) 534–535.
55 Torch Printing and Publishing Co (Pty) Ltd supra 822F.
56 2001 1 SACR 686 (CC).
57 Par 19.
58 Pars 18, 19, 24, 25, 45.
59 Pars 32, 45.
324 CRIMINAL LAW

In South Africa the right to freedom of expression is, according to the court,
not an unqualified right and one ranking above all others.60 Relying on section 1
of the Constitution, the Court stated that the right to freedom of expression
cannot be said automatically to trump the right to human dignity.61 To decide
whether X in a particular case committed the crime, the question is whether his
words or conduct was, objectively speaking, likely to result in the administra-
tion of justice being brought into disrepute.62
However, the court added a rider to its finding that scandalising the court is
constitutional. This is that a court should not be quick to infer that X’s words or
conduct amounted to the commission of the crime.63 The scope for conviction
of this form of the crime is very narrow. There must be a “clear case of im-
peachment of judicial integrity”;64 the conduct must “really [be] likely to dam-
age the administration of justice”.65
13 Criticism of judgment in Mamabolo The judgment in Mamabolo is open
to criticism. The main criticism of the punishment of scandalising the court
remains: that is, that the standing of, and respect for, the judiciary should be
based upon the inherent merits of the performance of the judiciary itself. Then
ordinary reasonable people will not even deign to take seriously criticism that
might be levelled at the judiciary. In the words of the American court in Bridges
v California66 “an enforced silence, however limited, solely in the name of pre-
serving the dignity of the Bench, would probably engender resentment, suspi-
cion and contempt much more than it would enhance respect”.
Furthermore, the definition of this form of the crime is particularly vague and
accordingly difficult to reconcile with the ius certum provision of the principle
of legality.67 Expressions such as “scurrilous abuse” and “scandalous” are emo-
tionally charged.68
To the above criticism of the judgment may be added the contentious rule,
endorsed by the court, that for a conviction it is not even necessary to establish
that the administration of justice was actually brought into disrepute; all that is
required is that the words or conduct should objectively have the tendency to
bring the administration of justice into disrepute. This is a disconcertingly wide
and vague test, open to misuse. The subjective opinions of people as to whether
certain words have the tendency described, may vary widely.69
________________________

60 Par 41.
61 Ibid.
62 Pars 43, 44, 50.
63 Par 45.
64 Ibid.
65 Par 45.
66 (1941) 314 US 252.
67 Supra I E 9.
68 Sachs J in his separate judgment correctly spoke of the “archaic vocabulary which fits
most uncomfortably into contemporary constitutional analysis”, adding that “[t]hey evoke
another age with other values, when a strong measure of awe and respect for the status of
the sovereign and his or her judges was considered essential to the maintenance of the
public peace” – par 70.
69 It is submitted that if scandalising the court should remain punishable, it is better to apply
the stricter test favoured by Sachs J in his separate judgment (par 75), and favoured in the
[continued]
 UNLAWFULNESS (JUSTIFICATION) 325

14 Failure to comply with an order of court A party to a civil case against

whom a court has given an order, and who intentionally refuses to comply with
it, commits contempt. Such contempt is, however, hardly ever charged as a
criminal offence by the state, and it is left to the party in whose favour the order
has been given to apply to court, if he so wishes, to convict the defaulting
party.70 Such an application is merely a way of enforcing the court order be-
cause if the application is successful the sentence, such as imprisonment, is
almost always suspended on condition that the defaulting party comply with the
order in the manner prescribed by the court.71 Although this form of contempt
is usually referred to as “civil contempt” because it is usually dealt with by civil
law only, there is nothing to prevent the Director of Public Prosecutions from
indicting for criminal contempt of court in such a case if he thinks the circum-
stances merit public prosecution.72
15 Obstructing court officials Persons who intentionally interfere with or
hinder court officials, such as sheriffs or messengers of the court in the execu-
tion of their duties, commit contempt of court, because such acts violate the
dignity and authority of the court.73 However, it is customary to punish such
conduct as the contravention of specific statutory provisions.74
16 Simulating court processes It is contempt of court to send to a debtor,
for the purpose of obtaining payment of a debt, a document which is not a legal
document emanating from a court of law but which is calculated to mislead the
debtor into thinking that it is.75 It is similarly contempt for a person to hold
himself to be an officer of the court, such as an attorney, advocate or sheriff, if
he is not in fact such an officer.76
17 Administration of justice by the courts Contempt of court can be com-
mitted only if the conduct or words impinge upon the administration of justice
in or by the courts. It is not committed if the conduct or words are aimed at the
executive branch of government or its servants, unless the criticism at the same
time imports disrespect of the courts.77 Thus, it is not contempt to criticise a
person or body for its performance of a purely administrative function,78 as, for
example, where X’s scornful words are found to be in fact aimed at the police.79
________________________

USA (Bridges v California (1941) 314 US 252, that the words should not merely have the
tendency to harm, but that they should constitute a “real and substantive threat” to the
administration of justice.
70 Beyers 1968 3 SA 70 (A) 78–81; Benator 1984 3 SA 588 (Z) 592–593; Kerkhoff v Minis-
ter of Justice and Constitutional Development 2011 2 SACR 109 (NGHP), which also
deals with issues of proof.
71 Tromp v Tromp 1956 3 SA 664 (N) 667.
72 Beyers supra 80–81.
73 Phelan 1877 K 5 8; Tromp 1966 1 SA 646 (N) 652F.
74 See the crime created in s 107 of the Magistrates’ Courts Act 32 of 1944.
75 Incorporated Law Society v Sand 1910 TPD 1295.
76 Incorporated Law Society v Wessels 1927 TPD 592.
77 Thooe 1973 1 SA 179 (O) 180; Gibson 1979 4 SA 115 (D) 121, 126.
78 Botha 1953 4 SA 666 (C); Dhlamini 1958 4 SA 211 (N); Thooe supra 180–181.
79 Sachs 1932 TPD 201 203–204. Mere disagreement with a judgment does not constitute
contempt – Sachs supra 204; Metcalf 1944 CPD 266 268.
326 CRIMINAL LAW

18 Unlawfulness Privileged statements, such as those made by members of

parliament in parliament, do not amount to contempt.80
Neither does fair comment on the outcome of a case, or on the administration
of justice in general, amount to contempt of court. For the law and the adminis-
tration of justice to enjoy the confidence of the public, public debate on matters
pertaining to these subjects is in a democratic society not only permissible but
also vital and necessary.81 The famous words of Lord Atkin in Ambard v
Attorney-General of Trinidad 82 have been quoted with approval by the South
African courts:83 “Justice is not a cloistered virtue: she must be allowed to suffer
the scrutiny and respectful, even though outspoken, comments of ordinary men.”
For comment to be fair it must be reasonable, bona fide and moderate, and
made in the interests of the better administration of justice.
19 Intention Subject to the qualification relating to the liability of the press
discussed below,84 the crime can be committed only intentionally.85 Dolus
eventualis is sufficient; it is in fact most often this form of intent which is pres-
ent when contempt is committed.86 In order to ascertain whether X had the
necessary intention, his words must be considered in the context in which they
were employed.87
Intention to commit contempt is absent if X’s seemingly insulting behaviour
is a result of forgetfulness, ignorance, absent-mindedness, inadvertence or
excitement.88 A litigant or his legal representative has a right, in proper circum-
stances, to apply for the recusal of a judge or magistrate from a hearing of a
case, and, if the application is made in the honest belief in the truth of the alle-
gations (and also with the necessary respect) no contempt is committed.89
20 Intention sometimes not required There is one noticeable exception to
the rule that intention is required to constitute the crime. This is where an editor
of a newspaper or another branch of the media is charged with contempt of
court because of the publication of a report or statements potentially prejudicial
to a court case which is sub iudice. The fact that he is unaware of what is pub-
lished, or that he is unaware that a court case is pending in connection with the
published information and hence lacks the necessary intention is no defence
because in his case negligence suffices for a conviction.90
There are strong policy considerations underlying this rule. It is extremely
difficult, if not impossible, to refute an allegation by the editor, proprietor or
________________________

80 See s 59 and 71 of the Constitution of the Republic of South Africa 108 of 1966.
81 Tromp 1966 1 SA 646 (N) 653; Van Niekerk 1970 3 SA 655 (T) 656–657.
82 [1936] 1 All ER 704 (PC) 709.
83 Torch Printing and Publishing Co (Pty) Ltd supra 821G; Van Niekerk 1970 3 SA 655 (T)
657A; Mamabolo 2001 1 SACR 686 (CC) pars 1, 27.
84 Infra par 21.
85 Gibson 1979 4 SA 115 (D) 121; Pillay 1990 2 SACR 410 (CkA) 416d and see also the
decisions referred to in the next 3 footnotes.
86 Sokoyi 1984 3 SA 935 (NC); Nel 1991 1 SA 730 (A) 745G–H.
87 Van Staden 1973 1 SA 70 (SWA) 75.
88 Sonpra 2004 1 SACR 278 (T); Moshoeu 2007 1 SACR 38 (T).
89 Luyt 1927 AD 1 4–5; McLoughlin 1929 CPD 359 361; Silber 1952 2 SA 475 (A) 481.
90 Harber 1988 3 SA 396 (A) 418D–E.
 UNLAWFULNESS (JUSTIFICATION) 327

publisher of a newspaper that he was unaware of the fact that a case was pending,
or of what appeared in his newspaper. The general common-law rule requiring
intent dates back to an era before mass communication media came into being.
The interests of the individual litigant or judicial officer who has been injured
or prejudiced by the unlawful publication cannot be measured against the far-
reaching sphere of influence of such mass news media with their large networks
of informants. Since the press has a tremendous influence on public thinking, it
bears a proportionately heavier responsibility than an ordinary individual to
ensure the correctness of what it publishes.91 It is submitted that the above rule
that negligence may be a sufficient form of culpability applies to not only a
newspaper editor’s liability for contempt of court but also to that of the owner,
publisher, printer and distributor of a newspaper.92 The individual reporter’s
liability, however, is based on intention.93

B DEFEATING OR OBSTRUCTING
THE COURSE OF JUSTICE

1 Definition The crime of defeating or obstructing the course of justice

consists in unlawfully and intentionally engaging in conduct which defeats
or obstructs the course or administration of justice.94

2 Elements of the crime The elements of the crime are the following: (a)
conduct (b) which amounts to defeating or obstructing (c) the course or adminis-
tration of justice and which takes place (d) unlawfully and (e) intentionally.
3 Appellation The crime developed from the provisions of the Roman lex
Cornelia de falsis,95 although today it covers a wider field than the original lex.96
The designation of the crime has not always been consistent in practice.
Sometimes it has been described as “defeating” the course of justice (“veryde-
ling van die regspleging”),97 sometimes as “obstructing” the course of justice
(“belemmering van die regspleging”),98 sometimes as “defeating and obstruct-
ing . . .”, 99 and sometimes as “defeating or obstructing . . .”.100 How correct the
designation of the crime in the charge sheet is will depend upon the nature of
the conduct which X is alleged to have committed. This will be explained more
fully below in paragraph 5. It is submitted that the Afrikaans expression
“dwarsboming van die gereg”, which is sometimes used as a description of the
________________________

91 Harber supra 418B–D, 426B; Snyman 1988 De Jure 150 154–156.

92 Snyman 1988 De Jure 150 156. This question was specifically left open in Harber
supra 418E–F.
93 Van Staden 1973 1 SA 70 (SWA); Harber: in re S v Baleka 1986 4 SA 214 (T) 220I (this
is the judgment of the court a quo in the Harber case supra); Snyman 1988 De Jure 150
156–157.
94 Burger 1975 2 SA 601 (C) 611–612; Pakane 2008 1 SACR 518 (SCA) par 34.
95 D 48 10 1; Voet 48 10; Matthaeus 48 7 1; Van der Keessel 48 10.
96 Burger supra 605–611; Greenstein 1977 3 SA 220 (RA) 223–224.
97 Eg Bekker 1956 2 SA 279 (A); Du Toit 1974 4 SA 679 (T).
98 Eg Kiti 1994 1 SACR 14 (E).
99 Eg Foye (1886) 2 BAC 121.
100 Eg Watson 1961 2 SA 283 (R) 286; Bazzard 1992 1 SACR 302 (NC) 303.
328 CRIMINAL LAW

crime,101 bears the same meaning as “defeating the course of justice”, and that
the expression “stremming van die regspleging”, which is also sometimes used,102
bears the same meaning as “obstructing the course of justice”. A reference to the
ends of justice103 in the description of the crime should, however, be avoided,
since this unduly restricts the scope of the crime, which deals with interference
in the course or administration of justice and can be committed even though just-
ice does triumph in the end.104
4 Overlapping The crime may overlap with a considerable number of other
crimes, such as contempt of court (which is but a species of the present crime),
perjury, fraud or forgery, extortion, obstructing the police in the course of their
duties, and being an accessory after the fact to another crime.105
5 Difference between defeating and obstructing There is a difference
between “defeating” and “obstructing” the course of justice. The latter connotes
something less than the former.106 A person can be found guilty on a charge of
defeating the ends of justice only if it is proved that justice has in fact been
defeated. This will be the case where it is proved that an innocent person has
been convicted or a guilty one discharged or, in a civil case, an order has been
made which would not have been made if the wrongful conduct had not taken
place.107
Because it is usually difficult to prove that the course of justice has in fact
been defeated, it is customary to charge conduct falling within the ambit of this
crime as defeating or obstructing the course of justice (or attempting to do so).
In charges of “defeating or obstructing the course of justice” or of “attempting
to defeat or obstruct the course of justice” it is not necessary that the ultimate
verdict should be one of defeating only or of obstructing only (or attempting to
do either of these). In other words, a charge of “defeating or obstructing the
course of justice” (or attempting to do so) is one of a single offence, not one
involving two distinct alternative offences.108
The course of justice can be obstructed in many ways, for example, where a
trial has to be delayed or postponed, or where the police or prosecution author-
ities are made to waste time and energy investigating the wrong charge or the
wrong person.
6 Ways in which the crime can be committed Defeating or obstructing the
course of justice (or attempting to do so) can be committed in a variety of ways,
of which the following are examples: unlawfully inducing (or attempting to
induce) a witness to give false evidence in court,109 or to refuse to give
________________________

101 Eg Tanoa 1955 2 SA 613 (O); Bazzard supra.

102 Eg Afrikaanse Pers-Publikasie (Edms) Bpk v Mbeki 1964 4 SA 618 (A) 628.
103 As eg in Cassimjee 1989 3 SA 729 (N).
104 Greenstein supra 223–224. The end result of the act is, therefore, not material for the
purposes of this crime.
105 Gani 1957 2 SA 212 (A) 220.
106 Burger supra 612; Greenstein supra 224.
107 See the clear distinction drawn between “defeating” and “obstructing” in Burger supra
612A and Greenstein supra 224.
108 Mdakani 1964 3 SA 311 (T) 312H.
109 Zackon 1919 AD 175; Port Shepstone Investments (Pty) Ltd 1950 4 SA 629 (A).
 UNLAWFULNESS (JUSTIFICATION) 329

evidence,110 or to give false information to the police,111 or to abscond (so as

not to be able to give evidence at a trial);112 soliciting a complainant by unlaw-
ful means to withdraw a charge;113 soliciting a prosecutor by unlawful means
not to prosecute;114 improperly influencing a party to a civil case;115 improperly
seeking to influence the judiciary by exhorting them not to give any credence to
certain types of evidence, contrary to their duties,116 and unlawfully releasing a
prisoner.117 The crime is also committed when a prospective witness demands
money as a quid pro quo for absconding (or not absconding), or for giving false
or even true evidence,118 and when a person tampers with documents or exhib-
its in a case in order to prevent true evidence being placed before court,119 or
misleads (or attempts to mislead) the police in order to prevent detection of a
crime that might otherwise be revealed to the police.120 It may furthermore be
committed by the fabrication of false evidence.121
The crime may be committed by either a positive act or an omission.122 How-
ever, the mere false denial of liability by a suspect when questioned by the
police does not in itself amount to attempting to defeat or obstruct the course of
justice.123
If a motorist warns other motorists of the presence of a speed trap by flashing
his lights, he interferes with the due administration of justice, and according to
the decision in Naidoo124 commits an attempt to defeat the course of justice.
However, in Perera,125 in which the facts were materially the same, it was held
that the person committing this act will be guilty only if he has reason to believe
that the vehicle approaching him is exceeding the speed limit, or that the driver
of this vehicle has the intention of exceeding the speed limit. In as far as these
two decisions are irreconcilable it is submitted that the latter should be followed.
This type of conduct is in effect nothing more than a warning to other people to
obey the law.
Laying a false criminal charge against another may also constitute the crime
(or an attempt to commit it).126 While lying to the police may amount to obstruc-
tion of the administration of justice, the crime is not committed by a mere refusal
to answer questions put by the police or to refuse to co-operate with the police
________________________

110 Gabriel (1908) 29 NLR 750 752 (count (a)).

111 Neethling 1965 2 SA 165 (O) 167.
112 Gabriel supra 752 (count (b)); Burger supra 609 (example 11).
113 Vittee 1958 2 PH H348 (T); Du Toit 1974 4 SA 679 (T).
114 Burger supra 607. Cf also W 1995 1 SACR 606 (A) (X, a state prosecutor, withdrew a
case against a woman in return for sexual intercourse with her).
115 Pokan 1945 CPD 169 171.
116 Van Niekerk 1972 3 SA 711 (A) 725–726.
117 Nhlapo 1958 3 SA 142 (T) 143; Burger supra 610 (example 14).
118 Cowan 1903 TS 798, especially 805.
119 Mdakani 1964 3 SA 311 (T) 316; Neethling supra 168.
120 Andhee 1996 1 SACR 419 (A); Mshumpa 2008 1 SACR 126 (EC) par 70
121 Tanoa 1955 2 SA 613 (O); Daniels 1963 4 SA 623 (E); Mdakani supra.
122 Gaba 1981 3 SA 745 (O) 751; Binta 1993 2 SACR 553 (C) 561g–h.
123 Cassimjee 1989 3 SA 729 (N).
124 1977 2 SA 123 (N).
125 1978 3 SA 523 (T).
126 Mene 1988 3 SA 641 (A) 664 F–G (overruling Sauerman 1978 3 SA 761 (A)).
330 CRIMINAL LAW

in obtaining evidence against oneself or another. This is because in most cases

there is no legal duty on the individual to assist the police.127
7 No pending case necessary It is not a requirement for the crime that the
conduct allegedly constituting it should have been committed in relation to a
specific pending case.128 It is, in fact, not even necessary that a court case be
envisaged by the police or a private litigant at the time of X’s conduct.129 It is
sufficient that X subjectively foresees the possibility that his conduct may, in
the ordinary course of events, lead to the case being prosecuted or at least being
investigated by the police.130 However, there must be a possibility of a real court
case, either civil or criminal, ensuing, because, as will be pointed out below, the
crime is not committed if X merely plays the fool with the police by telling
them that a crime has been committed whereas X knows that no crime has in
fact been committed.131 If a driver whose motor vehicle has been involved in a
collision goes to the police shortly after the accident and falsely informs them
that his car has been stolen, to allay suspicion of himself, he commits the crime
of attempting to defeat or obstruct the course of justice.132
8 The course or administration of justice In Bazzard 133 it was held that the
course or administration of justice which must be obstructed in order to consti-
tute this crime refers to a process which is destined to eventuate in a court case
between parties or between the state and its subjects. Accordingly, the mere
wasting of time and energy of certain officials such as the police or the person-
nel of the Director of Public Prosecutions’ office does not constitute obstructing
the course of justice. In this case X phoned the police and told them that he had
kidnapped a girl whom he was going to kill unless a ransom was paid to him. As
a result thereof the police launched a search and traced X, who admitted to them
that he had in fact not kidnapped anyone. He had not falsely accused anybody
of having committed a crime, and he had not put in motion any legal process. He
tried only to play the fool with the police by reporting to them a non-existing or
fictitious crime. The court found that he had not committed the crime.134 X in
this case could have been convicted of fraud.135
The case of Bazzard must be distinguished from a factual situation such as the
following: X was involved in a crash with his car, caused by his own negligence.
(He collided with a stationary vehicle in which there were no passengers.) In an
________________________

127 Binta 1993 2 SACR 553 (C) 563; Cf also Kiti 1994 1 SACR 14 (E).
128 Zackon 1919 AD 175 181; Mdakani supra 315, 317.
129 Neethling supra 167–168; Burger supra; Greenstein supra 224–226.
130 Thompson 1968 3 SA 425 (E) 427; Burger supra 612–613.
131 Bazzard 1992 1 SACR 303 (NC).
132 Neethling supra 168; Burger supra.
133 1992 1 SACR 303 (NC), discussed by Snyman 1992 SACJ 335.
134 Snyman 1992 SACJ 335 at 341 points out that, assuming that this decision is correct, it
points to a deficiency in the rules of our criminal law, and that the legislature ought to
create an offence similar to the one created in s 5(2) of the Criminal Law Act of 1967 in
England which makes it an offence for a person to cause any wasteful employment of
the police by knowingly making to any person a false report tending to show that an
offence has been committed.
135 Minister of Safety and Security v Howard 2009 2 SACR 536 (GSJ) 545g.
 UNLAWFULNESS (JUSTIFICATION) 331

attempt to escape the consequences of his deed, he goes to the police and falsely
claims that his car has been stolen.136 (Such a false allegation implies that another
person caused the crash.) In such a situation the actual crash with all the damage
caused, will inevitable come to the notice of the police and a real court case be-
tween two parties or between the state and a possible accused is destined to
ensue. Such conduct does amount to the commission of the crime. (In Bazzard’s
case no such real court case involving a charge of kidnapping was destined to
ensue, for the simple reason that no actual kidnapping had in fact taken place.)
The interest protected here is the due administration of justice by the superior
or inferior courts in either civil137 or criminal judicial proceedings. The crime
cannot be committed in respect of administrative proceedings.138
9 Intention X must subjectively have foreseen the possibility that his con-
duct might defeat or obstruct the administration of justice.139 He must have
been aware of the fact that it might thwart or interfere with judicial proceedings
which were to take place in the future, or would at least hamper or forestall the
investigation of an offence.140 Where X’s conduct consists in interfering with
witnesses he must be aware of the fact that the person he is approaching and
influencing is in fact a prospective witness.141 If his conduct consists in fabri-
cating evidence, laying a false charge or telling falsehoods to witnesses with a
view to influencing them, he must know (or at least foresee the possibility) that
the allegations he is propounding are in fact false.142
10 Attempt If someone deliberately supplies the police or a witness with false
information which is, however, immediately disbelieved and not acted upon, he
neither defeats nor obstructs the course of justice, but his conduct will consti-
tute an attempt to defeat or obstruct the course of justice.143 Charges of attempt-
ing to defeat or obstruct the course of justice in fact seem to be more common
than charges alleging actual defeat or obstruction. “Attempting to defeat or
obstruct the course of justice” can be described as “unlawfully doing any act in
the furtherance of an intention to defeat or obstruct the administration of just-
ice”,144 provided the act is one of execution and not one of mere preparation.
On a charge of attempting to defeat or obstruct the course of justice, it is no
defence to allege that the prosecution would have failed in any event because
of some other shortcoming in the state case, despite the conduct complained
of. The ultimate result of the proceedings which were interfered with by X is
immaterial.145

________________________

136 Cf Mene 1988 3 SA 641 (A) 664F–G.

137 As in Pokan 1945 CPD 169.
138 Nhlapo 1958 3 SA 142 (T); Thompson supra.
139 Zackon 1919 AD 175 182; Hirschhorn 1934 TPD 178 181.
140 Neethling 1965 2 SA 165 (O) 168; Burger 1975 2 SA 601 (C) 617.
141 Port Shepstone Investments (Pty) Ltd 1950 4 SA 629 (A) 637F.
142 Zackon supra 179; Bekker 1956 2 SA 279 (A) 281F.
143 Maree 1964 4 SA 545 (O) 558; Viljoen 1970 1 SA 14 (T) 16–17.
144 Tanoa 1955 2 SA 613 (O) 615; Maree 1964 4 SA 545 (O) 558.
145 Neethling supra 168H; Greenstein 1977 3 SA 220 (RA) 224.
332 CRIMINAL LAW

C PERJURY

1 Definition Perjury consists in the unlawful and intentional making of a

false statement in the course of a judicial proceeding by a person who has
taken the oath or made an affirmation before, or who has been admonished
by, somebody competent to administer or accept the oath, affirmation or
admonition.146

2 Elements of the crime The elements of the crime are the following: (a) the
making of a declaration; (b) which is false; (c) under oath or in a form equiva-
lent to an oath; (d) in the course of a judicial proceeding; (e) unlawfulness and
(f) intention.
3 Origin In Roman and Roman-Dutch law the crime was known either as
periurium or as a form of one of the crimina falsi.147
4 False statement The statement constituting perjury can be either verbal or
in the form of an affidavit.148
The statement must be false. In English law objective falsity is not required:
subjective falsity is sufficient.149 This means that if a person thinks he is lying
and intends making a false statement but he is in fact unwittingly telling the
truth, the crime of perjury is nevertheless committed (provided the other require-
ments for the crime are complied with). In South Africa it has as yet not been
decided whether it is subjective or objective falsity which is required, but it is
submitted that the weight of authority favours objective falsity for the following
reasons: firstly, our courts describe perjury as being committed if a false state-
ment is made,150 and, secondly, the legislature also speaks of the making of a
false statement when dealing with procedural provisions relating to perjury in

________________________

146 The precise reasons for this definition appear from the discussion of the different require-
ments which follow. It is submitted that the definition in Hunt-Milton 131 and Burchell
and Milton 704 is incorrect inasmuch as these authors hold the view (a) that “subjective
falsity” is sufficient to constitute the crime ( cf the discussion infra par 4) and (b) that
the statement should be made “before a competent tribunal” ( cf the discussion infra
par 7). For the same reasons it is submitted that the definition in Gardiner and Lans-
down 2 1098 (which was referred to with approval in Hassa 1939 NPD 161 and Carse
1967 2 SA 659 (C)) is incorrect.
147 For the Roman law on this subject, see D 48 10 pr, 1, 2; D 48 10 9 3; D 48 10 27; D 47
20 4; D 47 13 2. Perjury and subornation of perjury were punishable in Roman law in
terms of the lex Cornelia de falsis. For the Roman-Dutch law on the subject, see Voet
12 2 32; Van Leeuwen RHR 4 33 14; Decker 4 33 14; Moorman 1 1 14. These authors
generally discussed only the punishment of perjury, not the requirements for the crime.
More attention is devoted to the requirements for the crime by Van der Keessel 48 10 8
and Van der Linden 2 3 3.
148 Jarrard 1939 EDL 102; Beukman 1950 4 SA 261 (O) 264A.
149 Archbold 28–163 ff.
150 Eg April (1894) 4 EDC 177: “To constitute perjury a false statement must be made
wilfully”; Amonda Ayar (1905) 26 NLR 96 100: “Perjury consists of a wilful . . . false
declaration upon oath”; McIntosh (1910) 4 BAC 63 64, in which the court agreed with
the statement that “it must . . . be proved that the matter sworn . . . is false”.
 UNLAWFULNESS (JUSTIFICATION) 333

the Criminal Procedure Act.151 Cases where the truth is told by a witness who
intends to lie may be punished as attempted perjury152 or as defeating or obstruct-
ing the course of justice (or attempting to do so).
The false statement may be express or implied, which means that the pros-
ecution may rely on an innuendo in the words of X to prove that he made a
false statement. In Vallabh,153 for example, it was held that the words of a wit-
ness “I have already stated what I heard” fairly imply that he heard nothing
more. If the prosecution relies on an innuendo, the inference sought to be drawn
from X’s words must be a necessary inference. Furthermore, the inference must
appear from the evidence led during the judicial proceedings, and cannot be
based on extraneous statements or affidavits.154
5 Statement need not be material The false statement need not be material
to any issue to be decided in the proceedings during which it is made. As a result
of legislation, since 1935 it is no longer necessary for the prosecution to allege
or prove the materiality of the statement.155
6 In the course of a judicial proceeding Perjury can be committed only if
the statement is made in the course of a judicial proceeding.156 The judicial pro-
ceeding may be of either a criminal or a civil nature.157 False statements made
during the proceedings of an administrative tribunal will not constitute per-
jury.158 Although the term “judicial proceeding” is not confined to proceedings
in a court of law, it nevertheless refers to proceedings in which rights are legally
determined and liability imposed by a competent authority on a consideration
of facts and circumstances placed before it.159
If the statement is not actually made during the judicial proceedings, it is
submitted that it can be regarded as having been made “in the course of ” such
proceedings only (a) if the law permits it to be used as evidence at a judicial
proceeding, and (b) if such use is contemplated as a possibility by the maker of
the statement at the time when the statement is made.160 According to this test,
statements made in an affidavit to be used in a civil application qualify,161 but
________________________

151 See s 101(1) of the Criminal Procedure Act 51 of 1977, which states that it is not neces-
sary to allege or prove “that the false evidence or statement was material to any issue”
(italics supplied). See also s 256 of the previous Criminal Procedure Act 56 of 1955.
The proviso to s 256, requiring independent “competent and credible evidence as to the
falsity of the statement”, was, however, not re-enacted in the new s 208. De Wet and
Swanepoel 435 requires objective falsity, but in Hunt-Milton 139 subjective falsity is
deemed satisfactory.
152 It is then a case of attempt to commit the impossible. See supra VIII B 8.
153 1911 NPD 9 12.
154 Matakane 1948 3 SA 384 (A) 391–393; Wallace 1959 3 SA 828 (R) 829–830.
155 S 20 of the General Law Amendment Act 46 of 1935, replaced by s 319(1) of the Crim-
inal Procedure Act 56 of 1955, replaced by s 101(1) of the Criminal Procedure Act 51
of 1977.
156 Ah Chee 1912 AD 231 237; Carse 1967 2 SA 659 (C) 660.
157 Eg Mahomed Hossain 1913 CPD 841; Du Toit 1950 2 SA 469 (A).
158 Ah Chee 1912 AD 231 241; Carse 1967 2 SA 659 (C).
159 Beukman 1950 4 SA 261 (O) 263. See the criteria for a judicial proceeding suggested in
Carse 1967 2 SA 659 (C) 663–664.
160 Beukman supra 266; Hunt-Milton 146.
161 Du Toit 1950 2 SA 469 (A); Beukman supra 264, 266A.
334 CRIMINAL LAW

not a statement made on oath in which a false criminal charge is laid,162 nor
extra-judicial affidavits made to the police in the course of their investigation
into an alleged crime.163
7 Court need not have jurisdiction As far as can be ascertained it has not
yet been decided whether perjury can be committed only if the judicial pro-
ceedings take place before a court having jurisdiction. Certain older decisions,
following English law, required for perjury that the statement should be made
“before a competent jurisdiction”,164 but these words were usually added obiter.
It is submitted that lack of jurisdiction, be it territorial or as regards the subject
matter, is no defence to a charge of perjury.165 One can accept that if a false
statement is made before a “tribunal” which cannot be described as a court of
law, no perjury is committed, as where a group of prisoners of war “try” their
own comrades for violating a code of conduct drawn up by themselves, or where
“witnesses” “testify” before a so-called “people’s court” or “bundu court”.166
8 On oath, affirmation or admonition Perjury is committed only if the
false statement is made on oath167 or in a form allowed by law to be substituted
for an oath, namely an affirmation in the place of an oath,168 or an admonition
to speak the truth in the case of certain classes of persons, such as young chil-
dren.169 Perjury can, therefore, not be committed during a legal representative’s
address to the court. The official who administers the oath or admonition, or
who accepts the affirmation, must be competent to do so.170
9 Unlawfulness An otherwise unlawful false statement may conceivably be
justified by coercion.171 The fact that the false statement was made by X in an
unsuccessful attempt to put up a defence is no justification for an otherwise
unlawful perjury,172 although it is unusual to indict a person for perjury in such
cases. The reason why prosecutions are unusual in these cases is that the con-
viction and punishment which follow are generally deemed to be sufficient
punishment for the perjury itself. Another consideration in this regard is the
practical difficulty of prosecuting each and every accused who gives false evi-
dence; if this were to be done, the courts would be inundated with prosecutions
for perjury.173
________________________

162 Beukman supra 264C, 266A.

163 Beukman supra 365–366.
164 Adendorff (1884) 3 EDC 403; Martheza (1885) 3 HCG 456 457; Lalbhai (1909) 19
CTR 751.
165 According to s 101(2) of the Criminal Procedure Act 51 of 1977 it is unnecessary to
allege in a charge of inter alia perjury the jurisdiction of the court, or to state the nature
of the authority of the court or tribunal.
166 Cf Zwane (3) 1989 3 SA 253 (W).
167 On oaths, see s 162 of the Criminal Procedure Act 51 of 1977.
168 S 163 of the Criminal Procedure Act 51 of 1977.
169 S 164 of the Criminal Procedure Act 51 of 1977.
170 Mahomed Hossain 1913 CPD 841 844.
171 Baxter 1929 EDL 189 190–191; Mokwena 1948 4 SA 772 (T) 773, in which coercion
was incorrectly regarded as a ground excluding culpability.
172 Malianga 1962 3 SA 940 (R) 943.
173 Cf Matakane 1947 3 SA 717 (O) 724; “Witnesses daily commit perjury in our Courts
with the greatest aplomb.”
 UNLAWFULNESS (JUSTIFICATION) 335

10 Intention Perjury can be committed intentionally only.174 X must know175

or at least foresee the possibility that his statement may be false. In the latter
case he has the requisite culpability if he acts recklessly in not caring whether
the statement is correct or false and in failing to qualify his statement.176 Mere
inadvertence or carelessness is, however, not sufficient.177 As the culpability
must refer to all the elements of the crime, X must also be aware of the fact that
he is under oath,178 affirmation or admonition, and that his statement is made in
the course of judicial proceedings.179

D SUBORNATION OF PERJURY

1 Definition Subornation of perjury consists in unlawfully and intention-

ally inducing another person to make a false statement on oath, affirmation
or admonition and in the course of a judicial proceeding, which statement
is in fact made by the other person.180

2 Discussion of crime The crime is strictly speaking superfluous, because all

cases of subornation of perjury could be treated as incitement to commit perjury.
Subornation of perjury, however, coincides only with cases of successful incite-
ment to perjury, because the crime is not committed unless the false evidence is
in fact given by the person suborned.181 If the person induced to give false evi-
dence in fact does not give such evidence because he either refuses, or agrees
but reneges, or is not called as a witness, the inducer could be charged with
merely attempted subornation of perjury, or with incitement to commit perjury,
or with defeating or obstructing the course of justice (or attempting to commit
this crime). Subornation may overlap with the crime of defeating or obstructing
the course of justice.182
Apart from the element of inducement, the other elements of the crime, namely
(a) false statement, (b) on oath, affirmation or admonition, (c) in the course of a
judicial proceeding, (d) unlawfulness, and (e) intention are the same as in the
crime of perjury discussed above.183 It is not clear whether the party suborned
should himself be aware of the fact that the evidence he is asked to give is false,
but the better view seems to be that such knowledge is not required.184
________________________

174 Mokwena 1948 4 SA 772 (T) 773; Bushula 1950 4 SA 108 (E) 116.
175 Mokwena supra 773; Bushula supra 116F, 117F.
176 Bushula supra 116–117. On the problems surrounding proof of dolus eventualis in
charges of perjury, see Bisset 1990 1 SACR 292 (ZS).
177 Mokwena supra 773.
178 Shongwe 1966 1 SA 390 (RA) 393C–D.
179 It is submitted that the opposite view held in Shongwe supra 393, 399 is incorrect.
180 Except for the requirement that another person must be induced the definition of the
crime is the same as that of perjury (supra X C 1). The few reported cases of suborna-
tion are: Meyer Yates (1897) 4 OR 134; Cupido 1939 1 PH H69 (C); Kganare 1955 1
PH H106 (O); Wallace 1959 3 SA 828 (R) 829E–F; Bester 1966 4 SA 432 (RA), and
Kature 1967 1 PH H125 (RA).
181 Hunt-Milton 151–153.
182 Zackon 1919 AD 175 179; Mtshizana 1965 1 PH H80 (A).
183 The requirement that the suborner must be aware of the falsity of the evidence was
stressed in Cupido supra and Kganare supra.
184 Wallace supra.
336 CRIMINAL LAW

E MAKING CONFLICTING
STATEMENTS UNDER DIFFERENT OATHS
(CONTRAVENTION OF SECTION 319(3) OF ACT 56 OF 1955)
1 Background It became clear long ago that it was often very difficult to
prove that a person had committed common-law perjury. As a result many per-
sons who ought to have been punished for making false declarations under oath
escaped convictions of perjury. The mere fact that somebody made two conflict-
ing statements under two different oaths did not necessarily mean that he had
committed perjury. He could be convicted only if the state proved that one of
the statements was false, and that he knew that it was false – thus, that he had
intended to lie. This was often very difficult to prove. X might have changed his
mind, or at least could allege as a defence that he had changed his mind. When
investigating the commission of a crime, the police usually take affidavits from
people who are able to throw light on the alleged commission of the crime. It
can be extremely embarrassing to the prosecution if a person who has made such
an affidavit subsequently gives evidence in court and in the course of such evi-
dence makes statements that are in conflict with the contents of his previous
affidavit to the police.
2 Content of section To overcome this and certain other difficulties (such as
proving that the statement was made in the course of legal proceedings)185 a
new statutory offence was created, which is often referred to simply as “statu-
tory perjury”. It was originally contained in section 131(3) of Act 31 of 1917
(the old Criminal Procedure Act). In 1955 it was re-enacted in section 319(3) of
the Criminal Procedure Act 56 of 1955. When in 1977 this Act was replaced by
the new Criminal Procedure Act 51 of 1977 the said section 319(3) was not
revoked and replaced by a section in the new Act. Section 319(3), therefore,
still applies today. It reads as follows:

“If a person has made any statement on oath whether orally or in writing, and he
thereafter on another oath makes another statement as aforesaid, which is in conflict
with such first-mentioned statement, he shall be guilty of an offence and may, on a
charge alleging that he made the two conflicting statements, and upon proof of those
two statements and without proof as to which of the said statements was false, be
convicted of such offence and punished with the penalties prescribed by law for the
crime of perjury, unless it is proved that when he made each statement he believed
it to be true.”

3 What the state has to prove The state need prove only (a) that X on two
different occasions made two statements under oath, and (b) that the statements
conflict with each other.186
As far as (a) is concerned, it is immaterial whether one or both of the oaths
are in writing or oral; neither does it matter whether either was made in the course
of a legal proceeding.187 The section speaks only of statements under oath, but it
would appear that the section is also contravened if one or both of the statements
________________________

185 Cf the discussion in Shole 1960 4 SA 781 (A) 789.

186 Mahomed 1951 1 SA 439 (T) 442; Shole supra 789; Kibi 1978 4 SA 173 (E) 175.
187 Ex parte Minister of Justice: in re R v Bhyala 1943 AD 135; Mahomed supra 441G–H.
 UNLAWFULNESS (JUSTIFICATION) 337

are made after an affirmation or declaration to speak the truth, since section 2
of the Interpretation Act 33 of 1957 provides that where the word “oath” occurs
in a statute, it includes an affirmation or declaration to speak the truth.
The two statements must be contained in two different oaths. Making conflict-
ing statements under the same oath does not constitute the crime. If (as is custom-
ary in practice) after an adjournment of the court a witness resumes his evidence
which he started to give before the adjournment, and is warned by the judicial
officer that he is still under oath, his evidence after the adjournment is not evi-
dence under another or a different oath, as contemplated by the section.188
In order to prove that a witness made an extra-judicial statement under oath
the state must prove that the oath was administered and the statement made in
accordance with the provisions of the Justices of the Peace and Commissioners
of Oaths Act 16 of 1963 and the regulations regarding the form of the oath and
the way in which it has to be administered, which are promulgated from time to
time in terms of section 10(b) of this Act.189 The person administering the oath
must have the necessary authority to do so. A discussion of who are justices of
the peace and how the oath has to be administered falls outside the scope of this
book.
As regards requirement (b) mentioned above, namely that the statements must
conflict with each other, the state need not prove which statement is false.190
Whether or not the statements do conflict is for the most part a question of
fact.191 In Ramdas192 the Appellate Division held that the two statements must
not be capable of reconciliation, and that they must be mutually destructive. If
the second statement consists in only a denial that the first statement was made,
there are not two conflicting statements.193
4 Onus on accused probably unconstitutional According to the present
formulation of the section the state need not prove that at the time of the making
of each of the two statements X believed that what he was saying was untrue.
In other words, the state need not prove that X intentionally told the untruth. An
onus is placed on X to prove the absence of any intention to lie; more particu-
larly X must prove that on both occasions he believed that what he was saying
was the truth. Is this onus placed upon X constitutional?
It is submitted that this onus is unconstitutional, since it conflicts with section
35(3)(h) of the Constitution, which grants X the right to be presumed innocent.
It is submitted that section 319(3) creates a reverse onus which is not reason-
able and justifiable.194 It is submitted that the normal rule relating to the onus of
________________________

188 Butelezi 1952 1 SA 511 (O).

189 Cf Rajah 1955 3 SA 276 (A); Shole supra; Khan 1963 4 SA 897 (A); Khoza 1973 4 SA
511 (T); Bacela 1988 2 SA 665 (E). It is evident from the latter case that a statement
under oath will not qualify for the purposes of this section if the person making the
statement was coerced to do so.
190 Mahomed 1951 1 SA 439 (T) 442.
191 Shole supra 789; Mazwai 1979 4 SA 484 (T) 486.
192 1994 2 SACR 37 (A) 40e (criticized by Louw 1994 SACJ 395).
193 Mofokeng 1957 2 SA 162 (O).
194 Cf Zuma 1995 1 SACR 568 (CC); Bhulwana 1995 2 SACR 748 (CC); Mbatha 1996 1
SACR 371 (CC); Julies 1996 2 SACR 108 (CC); Coetzee 1997 1 SACR 379 (CC);
Ntsele 1997 2 SACR 740 (CC).
338 CRIMINAL LAW

proof in criminal matters applies also to prosecutions for contravening section

319(3). This means that the state bears the onus of proving intention. If the state
has led evidence that X had made two conflicting statements, in certain cases
the prima facie inference can, depending upon the facts, be drawn that during at
least one of the two occasions X realised that he was not speaking the truth.
5 Difference between common-law and statutory perjury To sum up,
there are the following points of difference between the two crimes: (a) In
common-law perjury only one statement comes into the picture, whereas in
statutory perjury there are two. (b) Common-law perjury can be committed in
the course of a legal proceeding only; in statutory perjury neither of the state-
ments need be made in the course of a judicial proceeding (although at least
one of them usually is).

F MAKING FALSE STATEMENTS IN AN AFFIDAVIT

(CONTRAVENTION OF SECTION 9 OF ACT 16 OF 1963)

1 Definition Section 9 of the Justices of the Peace and Commissioners

of Oaths Act 16 of 1963 provides that any person who, in an affidavit,
affirmation or solemn or attested declaration made before a person com-
petent to administer an oath or affirmation or take the declaration in ques-
tion, has made a false statement knowing it to be false, commits an offence.
According to the same section he is liable to the penalties prescribed by
law for the offence of perjury.

2 Discussion of crime This section is applicable if somebody intentionally

makes a false affidavit or declaration as specified in the section outside a court,
in other words, not in the course of a legal proceeding.195 This does not mean
that if the statement is subsequently used in a legal proceeding the section can,
therefore, not be contravened. It means only that the crime is completed as soon
as the false statement is made, and that it does not matter what use is sub-
sequently made of it, or for what purpose it was made.196 The section is not
applicable to false statements made under oath by a witness in the course of
a trial in a court.197 The requirement of intention is specifically stated in the
section.198

G ESCAPING FROM CUSTODY

1 General There are, generally speaking, three offences or groups of offences
relating to escaping from lawful custody, namely the common-law offence of
escaping, contravention of section 51 of the Criminal Procedure Act 51 of 1977
and contravention of certain provisions of the Correctional Services Act 111 of
1998.
________________________

195 Mpofana 1970 2 SA 72 (C).

196 Du Toit 1950 2 SA 469 (A).
197 Opperman 1969 2 SA 181 (T).
198 On this requirement, see Theron 1968 4 SA 61 (T) 62.
 UNLAWFULNESS (JUSTIFICATION) 339

2 The common-law crime of escaping In terms of the common law it is a

crime to escape from a prison or other place of lawful detention. People who
assist in the escape, rescue a prisoner from gaol or harbour an escaped prisoner
are similarly guilty of an offence in terms of the common law.199 However, the
common-law offence is of little importance, since statutory offences that cover
the same misconduct have long since been enacted.
3 Escaping and aiding escaping before incarceration Section 51 of the
Criminal Procedure Act 51 of 1977 deals with escape after a lawful arrest but
before the arrested person is lodged in a prison or police cell. Section 51(1)
provides that any person who escapes or attempts to escape from custody after
he has been lawfully arrested and before he has been lodged in any correction
facility, police-cell or lock-up, commits an offence. The custody must be
lawful.200
Section 51(2) provides that any person who rescues or attempts to rescue from
custody any person after he has been lawfully arrested and before he has been
lodged in any correctional facility, police-cell or lock-up, or who aids such per-
son to escape or to attempt to escape from such custody, or who harbours or
conceals or assists in harbouring or concealing any person who escapes from
custody after he has been lawfully arrested and before he has been lodged in
any correctional facility, police-cell or lock-up, commits an offence.
The punishment for these crimes is the same as those provided for in the
Correctional Services Act 111 of 1998 for escaping from lawful custody. This
punishment will be set out in the discussion below of the relevant sections of
that Act.
4 Offences created in Correctional Services Act relating to escaping Sec-
tion 117 of the Correctional Services Act 111 of 1998 provides that any prisoner
who escapes from custody, commits a crime. A prisoner who conspires with any
person to procure his or her own escape or that of another prisoner, or who
assists or incites any prisoner to escape, also commits a crime. Further, any
prisoner who is in possession of any document or article with intent to procure
his or her own escape or that of another prisoner, commits a crime. A prisoner
who in any manner collaborates with a correctional or custody official or any
other person to leave the prison without lawful authority or under false pre-
tences, also commits a crime. The punishment for these crimes is a fine or im-
prisonment for a period not exceeding ten years or to imprisonment without the
option of a fine or both.201
________________________

199 Voet 48 3 9; Damhouder 18; Matthaeus 47 16 4; Van der Linden 2 4 7; Msuida 1912
TPD 419.
200 Mafora 2010 1 SACR 269 (NWM) par 10; Evilio 2012 1 SACR 367 (SGHJ). In Busuku
2006 1 SACR 96 (E) the court emphasized that where X had escaped after he had been
lodged in police cells, he should not be charged under s 51 of the Criminal Procedure
Act, but with contravention of section 117 of the Correctional Services Act 111 of 1998.
This crime is set out later in the text.
201 If the provisions of the Adjustment of Fines Act 101 of 1991 are taken into account, the
maximum fine that may be imposed is R120 000 × 10 = R1.2 million in the case of a
Magistrate’s Court which is not a Regional Court, and in the case of a Regional Court
R600 000 × 10 = R6 million.
340 CRIMINAL LAW

Section 115 of the same Act deals with aiding escapes. It provides that any
person who conspires with or incites a prisoner to escape, or who assists a pris-
oner in escaping or attempting to escape from any correctional centre or from
any place where he or she may be in custody, commits a crime. A person who,
for the purpose of facilitating the escape of any prisoner, supplies any other
person with any document, disguise or any other article, also commits a crime.
A person who harbours or conceals or assists in harbouring or concealing an
escaped prisoner, commits a crime. The punishment for these acts is the same
as the punishment for contravention of section 117.
 CRIMES AGAINST THE
COMMUNITY

CHAPTER

XI

SEXUAL CRIMES

A GENERAL
1 Introduction The Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 (hereafter referred to as “the Act”) consolidates all
crimes relating to sexual matters.
The Act repeals the common-law crime of rape1 and replaces it with an ex-
panded statutory crime of rape, which is applicable to all forms of sexual
penetration without consent, irrespective of the gender of the perpetrator or the
victim.2 It repeals the common-law crime of indecent assault3 and replaces it
with a statutory crime of sexual assault, applicable to all forms of sexual vio-
lation without consent.4 It repeals other common-law crimes dealing with the
commission of sexual acts, namely incest, bestiality and intercourse with a
corpse,5 and replaces these crimes with new statutory crimes.6 It repeals large
portions of the Sexual Offences Act 23 of 19577 and replaces them with newly
formulated sexual crimes. It also creates a number of new sexual crimes not
formerly known in our law.
It is noticeable that the Act does not penalise a certain type of act which deals
directly with sexual matters: that is the intentional or negligent infection of
another person with the HIV virus. The fact that this type of conduct is not
rendered punishable, must be regretted. However, if X, who knows that he is
HIV-positive, rapes a woman Y in the knowledge that by so doing he will
transfer the deadly virus to Y, he commits attempted murder, if his act becomes
________________________

1 S 68(1)(b).
2 S 3, discussed infra XI B.
3 S 68(1)(b).
4 S 5, discussed infra XI D.
5 S 68(1)(b).
6 S 12, 13 and 14, discussed infra XI K, L and M.
7 S 68(2) read with the Schedule to the Act.

341
342 CRIMINAL LAW

known while Y is still alive.8 If his act becomes known after Y has already died
and it is clear that the deadly virus transferred to Y by X was the cause of
death, he may be convicted of murder.
A full discussion of every provision of this Act falls outside the scope of this
book. Only those parts of the Act which deal with the substantive criminal law,
that is, those sections defining the most important crimes, will be discussed.
Provisions dealing primarily with procedural or administrative matters, such as
those dealing with HIV testing of alleged offenders and the national register of
sexual offenders, will not be discussed.
2 Description of perpetrator and complainant The style used in this book
is to refer to the perpetrator of a crime as “X” and the victim or complainant as
“Y”. In the formulations of the definitions in the Act the legislature refers to the
perpetrator as “A” and to the complainant as “B”. For the sake of consistency
of style, the letters “A” and “B” will not be used in the discussion of the crimes
which follow. Instead the use of the letters “X” and “Y” (and “Z”, when refer-
ring to a third party) will be retained. The letters “A”, “B” and “C” will be used
only in cases of direct quotations of for example definitions in the Act.
3 Attempt, conspiracy, incitement, assistance Section 55 provides that any
person who (a) attempts; (b) conspires with another; (c) aids, abets, induces,
incites, instigates, instructs, commands, counsels or procures another person to
commit any sexual offence in terms of the Act, is guilty of an offence. What the
section does is to criminalise all anticipatory conduct (attempt, conspiracy and
incitement) in respect of the sexual crimes as well as all conduct by accom-
plices to the commission of such crimes.
The section is entirely unnecessary, since the provisions of section 18 of the
Riotous Assemblies Act 17 of 1956 already criminalises such anticipatory con-
duct in respect of all statutory crimes,9 whereas the conduct of accomplices to
crimes are punishable in terms of the common law.10 Presumably the legislature
decided to insert this section in order to ensure that all such anticipatory con-
duct in respect of sexual crimes as well as all assistance by an accomplice to the
commission of sexual crimes is contained within this one Act.
This aspect of every sexual crime discussed below should be kept in mind
throughout when reading the discussions of the crimes, since reference to these
aspects of the crimes will not be made again in the discussion of each crime. To
reiterate in the discussion of every sexual crime that attempt, conspiracy, incite-
ment and the rendering of assistance to or in respect of such crimes is punishable,
would amount to unnecessary repetition. What attempt, conspiracy, incitement
and accomplice liability entail has already been set out in detail above.11
4 Punishment It is customary for the legislature when creating crimes to stipu-
late the maximum punishment, for example, the maximum number of years of
imprisonment which may be imposed if a person is convicted of having commit-
ted a crime created in the Act. The present Act is unusual in that there are,
________________________

8 Nyalungu 2013 2 SACR 99 (T).

9 Supra VIII.
10 Supra VII C.
11 Supra VIII (attempt, conspiracy and incitement); VII C (accomplices).
 SEXUAL CRIMES 343

generally speaking, no provisions in the sections creating crimes which set out
the maximum punishment which a court may impose after a conviction. How-
ever, section 56A(1) of the Act provides that if a court has convicted a person
of an offence in terms of the Act and a penalty is not prescribed in respect of
that offence in terms of the present Act or any other Act, it (the court) may
impose a sentence as provided for in section 276 of the Criminal Procedure Act
51 of 1977 which the court considers appropriate and which is within that
court’s penal jurisdiction.
To understand the reason for the insertion of this provision, it is necessary to
consider the judgment of the Supreme Court of Appeal in Director of Public
Prosecutions, Western Cape v Prins.12 In this case the Supreme Court of Appeal
dealt with a challenge by X that some of the most important provisions in the
Act which purported to create crimes, did in fact not create crimes because
there were no penalty clauses in respect of these crimes, in other words, because
the legislature failed to insert provisions clearly stating what the (maximum)
punishments for these “crimes” were. The court dismissed this challenge, on
the ground of the provisions of section 276(1) of the Criminal Procedure Act 51
of 1977. This subsection provides that a person convicted of a crime may receive
any of a number of sentences listed, such as imprisonment, a fine and cor-
rectional supervision. The court held that section 276(1) was a general pro-
vision empowering courts to impose sentences in respect of all crimes, both
common-law and statutory, where there is no other provision in law prescribing
the sentence or maximum sentence that could be imposed for a specific crime.
The extent of the punishment is in the discretion of the court, subject only to
provisions limiting a court’s powers of punishment, as is the case in Magis-
trate’s Courts.
To sum up, if a court has convicted X of any of the crimes which will be
discussed below, the punishment is simply in the court’s discretion, subject
only to that particular court’s penal jurisdiction, that is, the maximum punish-
ment which that court may impose for any crime.
As far as the new statutory crime of rape, as well as certain of the new sexual
crimes against children and mentally disabled persons are concerned, the
provisions of the Criminal Law Amendment Act 105 of 1997 apply.13 These
provisions provide for certain minimum sentences to be imposed in certain
circumstances upon a person convicted of the crimes mentioned. The provisions
relating to rape will be discussed below at the end of the discussion of rape.

B RAPE

1 Definition Section 3 of the Act provides that any person who unlawfully
and intentionally commits an act of sexual penetration with another person
without the latter’s consent, is guilty of the offence of rape.

The expressions “sexual penetration” and “consent” are further defined in

section 1 of the Act. These latter definitions are fairly long and will be quoted
________________________

12 2012 2 SACR 183 (SCA), discussed by Terblanche and Jordaan 2012 SACJ 379.
13 See the Schedule to this Act.
344 CRIMINAL LAW

and discussed below under the discussions of the elements of the crime to which
they refer.
2 Elements of crime The elements of the crime are the following: (a) sexual
penetration of another person; (b) without the consent of the latter person; (c)
unlawfulness; and (d) intention.
3 Rape in terms of the common law Before the coming into operation of
the present Act rape was a common-law crime. It consisted in a male having
unlawful and intentional sexual intercourse with a female without her consent.14
The slightest penetration by X of Y was sufficient, and it was immaterial
whether semen was emitted.15 X could only have been a male and Y (the com-
plainant) could only have been a female. By “intercourse” was meant the in-
sertion by the male of his penis into the woman’s vagina. If he inserted his
penis into her anus, he did not commit rape, but indecent assault.16 However, in
2007, shortly before the new Act came into operation, the Constitutional Court
in Masiya v Director of Public Prosecutions17 extended the definition of the
common-law crime of rape by including within its ambit also penetration by a
male’s penis into the woman’s anus. This decision is, with all respect, incorrect,
as it violated the principle of legality: the same ratio underlying the principle
that no court may create a crime (only parliament may do so) also dictates that
no court, not even the Constitutional Court, has the power to extend the ambit
of an existing crime to include within its definition situations formerly falling
outside the definition. Only parliament has the power do so. The judgment was
quite correctly criticised.18 However, since parliament did intervene by the cre-
ation of the new statutory crime of rape, it is unnecessary to discuss the un-
fortunate judgment in Masiya further. As far as the requirements for the crime
of rape is concerned, this judgment is now merely of academic importance,
although it remains of importance as far as the principle of legality is concerned
The intercourse had to take place without the woman’s consent. This require-
ment, which in practice amounted to the most important of all the requirements
which the state had to prove in order to obtain a conviction, coincided for all
practical reasons with the corresponding requirement in the new statutory crime
of rape, which is discussed below.
4 General remarks concerning statutory crime of rape One of the reasons,
perhaps the most important one, why the legislature has decided to create a new
definition of rape, is to “deal adequately, effectively and in a non-discriminatory
manner with many aspects relating to . . . the commission of sexual offences”
and also to give greater recognition to the right to equality enshrined in the Bill
of Rights.19
________________________

14 Gaseb 2001 1 SACR 438 (NmS) 451g–h.

15 Blaauw 1999 2 SACR 295 (W) 299c.
16 M (2) 1990 1 SACR 456 (N).
17 2007 2 SACR 435 (CC).
18 For a detailed criticism of the judgment, see Snyman 2008 SALJ 677, as well as the criti-
cism of this judgment in the course of the discussion of the principle of legality supra I F
11, 12. See also Hoctor 2007 SACJ 78, who criticises the judgment of Ranchod AJ in the
Transvaal court in this case.
19 See the 4th and 6th “whereas” in the Preamble of the Act.
 SEXUAL CRIMES 345

Before the enactment of the present Act the common-law definition of rape
was criticised as archaic, illogical, discriminatory, irrational, unjust and un-
constitutional.20 This line of argument is incorrect. There was and is a purely
rational reason for treating non-consensual penile penetration of a woman’s
vagina on a different footing from such penetration of her anus:
Firstly, males and females are created differently in that below the waist
males have only one orifice which can be sexually penetrated, namely the anus,
whereas females have two, namely the anus as well as the vagina. To regard
this difference as amounting to discrimination or inequality is incorrect. It would
amount to “putting God in the dock” because He (of She or evolution or who-
ever or whatever one believes to have created the world and mankind), by
creating two different types of people, failed to obey the (present “politically
correct”) principle that there ought to be no differences between people.
Secondly, the function of a woman’s vagina and that of her anus are funda-
mentally different: the way in which the human species procreates is by the
male discharging his semen into the woman’s vagina, as opposed to her anus.
Penile penetration of the vagina may result in the woman becoming pregnant.
This results in the woman’s vagina playing a privileged role in her biological
makeup. The vagina cannot simply be lumped together with her anus as just
another orifice that happens to form part of her anatomy. If the privacy of her
vagina is violated by penile penetration, the possible consequences for her are
much more serious than if her anus is violated by such penetration: the distin-
guishing feature of penile penetration through the vagina, as opposed to such
penetration via the anus, is the risk of pregnancy.
Although it is not disputed that non-consensual anal intercourse is traumatic,
abhorrent and demeaning for the woman (as well as, for that matter, for the
male who is penetrated through his anus), non-consensual penile penetration of
the vagina violates the most personal of all the parts of a woman’s body. It
infringes her whole being and identity as a woman, as opposed to a man.
Accordingly vaginal and anal penetration deserve to be treated separately. The
Constitutional Court in Masiya v Director of Public Prosecutions 21 was com-
pletely correct in refusing to agree with the decision of the Transvaal Court in
the same case (as well as with the regional magistrate who initially heard the
case) that the common-law definition of rape was unconstitutional.
Though the courts have no right to extend the definition of existing crimes,
parliament does have this right, and exercised this right in enacting the Act
presently under discussion. As far as the crime of rape is concerned, in terms of
the Act it no longer matters whether it is the vagina or the anus which is pene-
trated, whether the perpetrator is a male or a female, whether the victim (com-
plainant) is a female or a male (as where male X inserts his penis into another
male Y’s anus), or whether the penetration is by a penis or by a finger, some
other part of X’s body or even by some object or part of an animal’s body.
Even non-consensual penetration of Y’s mouth may in certain circumstances
amount to the commission of the crime.
________________________

20 Masiya v Director of Public Prosecutions supra par 10, 71, where the remarks of the
magistrate who heard the case, as well as of Ranchod J, who delivered the judgment of
the Transvaal court, are referred to.
21 Supra par 32.
346 CRIMINAL LAW

All these acts now amount to rape. The legislature has obviously not given
much recognition to the “principle of fair labelling”, and lumped together under
one single heading a number of dissimilar acts which differ substantially from
one another in character. The general public will presumably continue to think
of rape as non-consensual penile penetration by a male of a woman’s vagina.
Non-consensual penile penetration of one male by another male via the anus
could have been treated as a separate crime called “male rape”.
5 Sexual penetration The act consists in X committing an act of “sexual
penetration” in respect of Y.

(a) Definition of “sexual penetration” in the Act The expression “sexual

penetration” is defined in section 1(1) as follows:
“sexual penetration” includes any act which causes penetration to any extent
whatsoever by –
(a) the genital organs of one person into or beyond the genital organs, anus, or
mouth of another person;
(b) any other part of the body of one person, or any object, including any part
of the body of an animal, into or beyond the genital organs or anus of an-
other person; or
(c) the genital organs of an animal, into or beyond the mouth of another person,
and “sexually penetrates” has a corresponding meaning.

The words “genital organs” as they appear in the Act are further defined in
section 1(1) as including “the whole or part of the male and female genital
organs, and further includes “surgically constructed or reconstructed genital
organs”.

(b) The words “which causes penetration”

The use of the word “causes” in the first line of the definition means that the
crime of rape created in the Act is no longer, as used to be the case in the old
common law crime of rape, a formally defined crime, that is, a crime consisting
merely in the commission of a certain type of act. It is now a materially defined
crime, that is, a crime consisting in the causing of a certain situation, namely
sexual penetration.22 The use of the word “causes” does not mean that “sexual
penetration” is limited to cases where X uses another person to perform the act
of penetration. The word “causes” should be read together with the word
“includes” in the beginning of the definition.
Read thus, and also considering the wide import of the word “causes”, it is
clear that sexual penetration includes all the situations in which X performs the
penetration of Y himself or herself, that is, with his or her own body or by him-
self or herself using some object to perform the penetration. The expression
“which causes penetration” should be read as a genus of which the actual pene-
tration of Y by X is merely a species. Put differently, for X to perform the pene-
tration himself or herself is just one of a number of ways in which “an act which
________________________

22 Van der Bijl 2010 SACJ 224. For a contrary view, see Roux and Courtenay 2011 THTHR
286.
 SEXUAL CRIMES 347

causes penetration” is committed. Furthermore, the use of the word “causes”

also means that a female can be convicted of raping a male.23
(c) Acts falling within the definition of “sexual penetration”
If one analyses the definition of “sexual penetration” quoted above, one can
list a large number of acts which qualify as acts of sexual penetration for the
purposes of the Act. In order to systematise to some extent the wide range of
possible acts which qualify under the definition, in the discussion which follows
a distinction will be drawn between:
(i) acts committed by a male in respect of a female;
(ii) acts committed by a female in respect of a male;
(iii) acts committed by a male in respect of another male; and
(iv) acts committed by a female in respect of another female.
When considering the different acts listed below, it must be assumed through-
out that Y is not a consenting party to the commission of the act.
(i) Acts committed by a male in respect of a female
1 X, a male, inserts his penis into the vagina of female Y. The slightest pene-
tration is sufficient.24 It is not required that there should be any emission of
semen or that Y should have become pregnant as a result of X’s act. This
act may be described as the most classic illustration of rape. In fact, under
the old common law it was the only act which qualified as an act of rape.
2 X, a male, inserts his penis into the anus of female Y. Once again, it is im-
material whether there is an emission of semen.
3 X, a male, inserts his penis into the mouth of female Y. The insertion of a
penis into the mouth of another person is known as fellatio. It is immaterial
whether there is an emission of semen. Insertion by X of his penis into Y’s
nose or ear does not fall within the definition.
4 X, a male, inserts any other part of his body into the vagina or anus of
female Y. For example, X places his tongue into female Y’s vagina. Such
conduct is referred to as cunnilingus. The expression “any other part of the
body” in the definition must obviously be interpreted in the light of which
part of the male person’s body is anatomically capable of penetrating a
woman’s vagina or anus. Thus, to embark for a moment into the realms of
sexual fantasy, X’s conduct also complies with the definition if he inserts
his finger, toe, nose or perhaps even ear into Y’s vagina or anus.
The insertion by X of some part of his body other than his penis into Y’s
mouth does not qualify, because paragraph (b) of the definition, which deals
with the insertion of “any other part of the body”, speaks only of insertion
into “the genital organs or anus of another person”. No mention is made in
paragraph (6) of the mouth of the other person. Thus, if male X merely
sticks his finger into female Y’s mouth, his conduct does not qualify,
although he may render himself guilty of assault.
________________________

23 This will be explained below in paragraph XI B 5 (c) (ii) 7, 8.

24 Cf the words “to any extent whatsoever” which follow immediately upon the word “pene-
tration” in the definition of “sexual penetration” in s 1(1).
348 CRIMINAL LAW

5 X, a male, inserts “any object” into Y’s vagina or anus. Objects such as a
stick, pen, pencil, carrot, peeled banana or sex toy come to mind. The inser-
tion by X of “any object” into Y’s mouth does not qualify, because para-
graph (b) of the definition, which deals with the insertion of “any object”,
speaks only of insertion into “the genital organs or anus of another person”.
No mention is made in paragraph (6) of the mouth of the other person. The
insertion of an object into Y’s mouth may, of course, amount to assault.
6 X, a male, inserts “any part of the body of an animal” into the vagina or
anus of female Y. The expression “any part of the body of an animal” is
wide enough to include not only the animal’s genital organ but also other
parts of the animal’s anatomy, such as the animal’s ear, horn, or tail. To in-
sert an animal’s ear or tail into Y’s mouth is not an act falling within the
definition. The insertion by X of the genital organs of a live animal into
Y’s vagina, anus or mouth, simultaneously amounts to the commission by
X of the new statutory crime of bestiality, created in section 13 of the Act,
which will be considered below.25
7 X, a male, inserts the genital organ of an animal, for example, a male
animal’s penis, into the mouth (as opposed to the vagina or anus) of Y, a
female. To insert a part of the body of an animal other than the animal’s
genital organs into Y’s mouth, is not an act falling within the definition;
this flows from the wording of subparagraph (c) of the definition of “sexual
penetration”, which mentions only an animal’s genital organs. The inser-
tion by X of the genital organ of an animal into the mouth of female Y
simultaneously amounts to the commission of the new statutory crime of
bestiality, created in section 13 of the Act, which will be considered below.26
8 X, a male, has a surgically constructed or reconstructed penis, which he
inserts into the vagina, anus or mouth of female Y.
9 What is the position if X, a male, does not himself insert any part of his
body or any other object into female Y’s vagina, anus or mouth, but causes
such a penetration to take place through the instrumentality of a third party,
Z? For example, X forces Z to perform the penetration upon Y by threaten-
ing to kill him (Z) if he does not execute the command, and Z, fearing for
his life, does as he is instructed. X thus compels Z to perform an act of sex-
ual violation. The phrase “any act which causes penetration . . . by . . . the
genital organs of one person into . . . the genital organs . . . of another per-
son” at the beginning of the definition of “sexual penetration” in section
1(1) is so wide that it would seem to include this type of behaviour. How-
ever, the problem is that section 4 criminalises exactly this form of con-
duct. If one were to assume that such conduct is covered by section 3, it
would mean that the provisions of section 4 are rendered nugatory. It is a
basic principle of the interpretation of statutes that a statutory provision
should not be interpreted in such a way as to render certain provisions (in
this case the whole of section 4) redundant. It is, therefore, submitted that
this type of conduct should be punished as a contravention of section 4, and
not of section 3.27
________________________

25 Infra XI L.
26 Infra XI L.
27 For a discussion of the crime created in section 4, see infra XI C.
 SEXUAL CRIMES 349

(ii) Acts committed by a female in respect of a male

1 X, a female, places her genital organ into the mouth of Y, a male. In other
words, X effects a cunnilingus between her and Y.
2 X, a female, places the penis of male Y into her mouth. In other words, X
effects a fellatio between her and Y.
3 X, a female, places another part of her body, such as her finger, into the
anus of Y, a male.
4 X, a female, places an object such as a pen or a sex toy into the anus of Y, a
male.
5 X, a female, places any part of the body of an animal, such as the animal’s
tail, into the anus of Y, a male.
6 X, a female, places the genital organ of an animal, such as a male animal’s
penis, into the anus or mouth of Y, a male.
7 What is the position if X, a female, does not herself insert any part of her
body or any other object into the anus or mouth of Y, a male, but causes
such a penetration to take place through the instrumentality of a third party,
Z? For example, X forces Z to perform the penetration upon Y by threaten-
ing to kill him (Z) if he does not execute the command, and Z, fearing for
his life, does as he is instructed. The third party may also be a female, in
which case the object inserted into Y depends upon what a woman is
anatomically capable of inserting into male person Y’s orifices. It is submit-
ted that in this set of facts the position is the same as that discussed above
under the analogous act numbered 9 under the above heading “(i) Acts
committed by a male in respect of a female”, and that such conduct is not
punishable as rape. The reasons for this submission are set out above under
the act numbered 9. Forced penetration should be punished as contraven-
tion of section 4 and not of section 3.
8 X, a female, places the penis of male person Y into her (X’s) vagina, anus or
mouth, or generally manipulates their respective bodies or bodily move-
ments in such a way that X’s actions result in Y penetrating her (X’s) vagina,
anus or mouth with his penis. It should be remembered that the legislature
contemplated the phenomenon of a female raping a male, no matter how
difficult it may be to contemplate. This flows from the ideology underlying
the Act, namely that male and female should be treated exactly equally, that
is, to brush any possible differences between the sexes “under the carpet”,
as it were. (This, in turn, forms part of the wider prevailing philosophy of
“political correctness”, which holds that there are or ought to be no differ-
ences between people, and that this point of departure should be maintained
at all costs, even if it is at odds with reality.) The wording of paragraph (a)
of the definition of “sexual penetration” in section 1(1) is wide enough to
include such conduct. The female is then the rapist and the male the com-
plainant. The easiest way of contemplating this type of conduct is to im-
agine the female as big and strong and the male as physically weak (and the
whole event as evidence of a rather rara avis).
9 The question arises whether an act of sexual penetration as envisaged by
the legislature takes place in the following type of situation: X, a female,
places a part of male person Y’s body other than Y’s genital organ, such as
Y’s finger, into her vagina or anus, or generally manipulates their bodies or
350 CRIMINAL LAW

bodily movements in such a way that the actions result in Y’s inserting a
part of his body such as his finger into her vagina or anus. It is submitted
that such conduct does fall within the definition, because the provisions of
paragraph (b) of the definition of “sexual penetration” is wide enough to
cover such conduct.
If the conduct described under the previously numbered act (act numbered
8 under (ii)) amounts to rape (as indeed it does, as explained above), then
the conduct described under the present heading must also qualify, because
of the similarities in the wordings of paragraphs (a) and (b).28 It is further-
more submitted that the position is the same if female X does not forcibly
place a part of male person Y’s body into her vagina or anus, but forces Y
to insert some other object such as a pen, a banana or a sex toy into her
vagina. The same arguments set out above apply to this type of situation.
(iii) Acts committed by a male in respect of another male
1 X, a male, inserts his penis into the anus of Y, another male. It matters not
whether there is an emission of semen. This type of conduct, previously
known as “sodomy”, can also informally be described as “male rape”. If Y
has consented to the act, no crime is committed.29
2 X, a male, inserts his penis into the mouth of Y, another male.
3 X, a male, inserts another part of his body, such as his finger, into the anus
of Y, another male. If X inserts his finger into Y’s mouth, his act does not
qualify.
4 X, a male, inserts an object such as a pen or a sex toy into the anus of Y,
another male. If X inserts a sex toy in the form of, say, a plastic penis, into
the mouth of Y, another male, his act does not qualify.
5 X, a male, inserts a part of the body of an animal, such as the animal’s tail,
into the anus of Y, another male.
6 X, a male, inserts the genital organs of an animal, such as the penis of a
male animal, into the anus or mouth of Y, another male.
7 X, a male, has a surgically constructed or reconstructed penis which he
inserts into the anus or mouth of Y, another male.
8 What is the position if X, a male, does not perform the act of insertion into
some orifice of Y, as set out above, himself but forces or coerces a third
party, Z, to perform the act? Z may be either a male or a female, provided
the type of act she performs is possible, considering the respective anat-
omies of males and females. It is submitted that the position is the same as
that described above under the analogous act numbered 9 under the above
heading “(i) Acts committed by a male in respect of a female”. Such forced
penetration should be punished as contravention of section 4 and not of
section 3, otherwise the provisions of section 4 are rendered redundant.
________________________

28 Further support for the submission that the present type of conduct does fall within the
definition is the fact that section 4, which criminalises compelled rape, is only applicable
to situations where a third person is compelled to perform the act on the complainant. In
the factual situation presently under discussion there are only two parties involved.
29 National Coalition of Gay and Lesbian Equality v Minister of Justice 1998 2 SACR 557
(CC).
 SEXUAL CRIMES 351

(iv) Acts committed by a female in respect of another female

1 X, a female, inserts her genital organs into the mouth of Y, another female.
2 X, a female, inserts some part of her body, such as her finger, into the
vagina or anus of Y, another female.
3 X, a female, inserts some object like a pen or a peeled banana into the
vagina or anus of Y, another female.
4 X, a female, inserts some part of the body of an animal, such as an animal’s
tail or a male animal’s penis, into the vagina or anus of Y, another female.
5 X, a female, inserts the genital parts of an animal into the mouth of Y,
another female.
6 What is the position if X, a female, does not perform the act of insertion
into some orifice of Y as set out above herself, but forces or coerces a third
party, Z, to perform the act? Z may be either a male or a female, provided
the type of act that Z performs is possible considering the respective anat-
omies of males and females. It is submitted that the position is the same as
that described above in the analogous act numbered 9 under the above
heading “(i) Acts committed by a male in respect of a female”. Such forced
penetration should be punished as contravention of section 4 and not of
section 3, otherwise the provisions of section 4 are rendered redundant.
6 Absence of consent
(a) Definitions in Act relating to absence of consent
The act of sexual penetration set out above must take place without the con-
sent of the complainant. The word “consent” as used in the definition of the
crime is defined in section 1(2) as “voluntary or uncoerced agreement”. Section
1(3) contains a long and important provision dealing with the interpretation of
the words “voluntary or uncoerced”. It reads as follows:

“(3) Circumstances . . . in respect of which a person (“B”) (the complain-

ant) does not voluntarily or without coercion agree to an act of sexual
penetration . . . include, but are not limited to, the following:
(a) Where B (the complainant) submits or is subjected to such a sexual
act as a result of –
(i) the use of force or intimidation by A (the accused person) against
B, C (a third person) or D (another person) or against the property
of B, C or D; or
(ii) a threat of harm by A against B, C or D or against the property of
B, C or D;
(b) where there is an abuse of power or authority by A to the extent that B
is inhibited from indicating his or her unwillingness or resistance to
the sexual act, or unwillingness to participate in such a sexual act;
(c) where the sexual act is committed under false pretences or by fraudu-
lent means, including where B is led to believe by A that –
(i) B is committing such a sexual act with a particular person who is
in fact a different person; or
(ii) such a sexual act is something other than that act; or
continued
352 CRIMINAL LAW

(d) where B is incapable in law of appreciating the nature of the sexual act,
including where B is, at the time of the commission of such sexual act –
(i) asleep;
(ii) unconscious;
(iii) in an altered state of consciousness, including under the influence
of any medicine, drug, alcohol or other substance, to the extent
that B’s consciousness or judgement is adversely affected;
(iv) a child below the age of 12 years; or
(v) a person who is mentally disabled.”

The word “sexual act” which appears in this subparagraph is defined in sec-
tion 1(1) as including an act of sexual penetration or sexual violation, and the
word “complainant” is defined in the same subsection as “the alleged victim of
a sexual offence”.
(b) Discussion of definitions relating to absence of consent
The contents of the above definitions do not contain anything new as far as
the legal rules relating to this matter are concerned. They merely codify the
common-law rules in respect of the absence of consent which applied in the
previous common-law crime of rape.
If Y (the complainant or victim) had offered physical resistance or loudly pro-
claimed his or her opposition (or both) to the proposed intercourse, there is, of
course, no problem in holding that the act of sexual penetration took place with-
out consent. It is, however, wrong to assume that a court may find that the act
took place without Y’s consent only if he or she had offered actual physical
resistance or had expressly stated or shouted his or her opposition to the act. Just
as Y’s consent to the act may be signified either expressly or tacitly (by impli-
cation), her refusal to consent may, likewise, be signified either expressly or
tacitly.
The provisions relating to consent in section 1(2) and (3) may all be summa-
rised as follows:

For consent to succeed as a defence, it must have been given consciously

and voluntarily, either expressly or tacitly, by a person who has the mental
ability to understand what he or she is consenting to, and the consent must
be based on a true knowledge of the material facts relating to the intercourse.

There are various factors that result in the law not deeming consent to be
valid, despite the fact that at first glance one may perhaps think there had indeed
been consent. These factors are all set out in section 1(3) and each of them will
now be discussed.
(i) Submission as a result of force, intimidation or threats (s 1(3)(a))
The first factor which leads the law not to recognise ostensible consent by Y
as valid consent for the purposes of rape, is the existence of force, intimidation
or threats of harm emanating from X in respect of Y or somebody else. Thus, if
Y ostensibly “consents” to sexual penetration but such “consent” is in fact the
result of force, intimidation or threats of harm emanating from X in respect of
Y or somebody else, the law does not regard such consent as valid consent.
 SEXUAL CRIMES 353

Centuries ago it was a requirement for a conviction of rape that the intercourse
should have taken place violently. In our present law rape is no longer limited
to such instances; the crime may be committed even though X had not used any
real violence. If, as a result of either actual violence or fear of future violence,
Y’s will is so overborne by fear or intimidation that he or she no longer offers
any outward resistance, such absence of resistance cannot be construed as valid
consent to intercourse. If, as a result of the violence or threats thereof, Y de-
cides simply to acquiesce in his or her fate, there is, in the eyes of the law, no
consent, because there is a substantial difference between mere submission and
real consent.30 On the other hand, an objection raised by Y only after intercourse
is of no effect if it appears that before the act Y was in fact a willing party.31
It is beyond dispute that fear aroused by threats of physical violence against
Y results in the law not regarding the consent as voluntary and valid. Both
threats by X that he or she will kill Y if Y does not submit to intercourse and
threats of physical harm to Y serve to render any “consent” which may follow
such threats invalid. However, the provisions of section 1(3)(a) goes further
and stipulates that even force, intimidation or threats of harm not against Y, but
against some third party, may render the ostensible consent invalid. It matters
not whether the third party is a close family member of Y, such as his or her
child or spouse, or a close friend. In fact, the subsection is so widely worded
that it may even include threats against somebody whom Y has never even met.
Furthermore, the subsection makes it clear that force or threat of harm not
against some person, but against property belonging to a person, may result in
the ostensible consent being regarded as invalid. It matters not whether the
property belongs to Y personally, to some family member or friend of his or
hers, or to some other person whom Y has never even met.
The word “harm” in paragraph 3(a)(ii) is not qualified, and is accordingly not
restricted to physical harm or harm to physical objects. It is wide enough to
cover monetary loss of whatever nature or even harm to reputation or dignity. If
X tells Y that an earlier act of infidelity by her against her husband will be
revealed to her husband if she does not submit to intercourse with him (X), and
Y, not wanting her husband to know about the infidelity, submits to the inter-
course, her submission cannot be construed as valid consent. This is a case of
intimidation of Y by X.
(ii) Abuse by X of power of authority (s 1(3)(b))
Section 1(3)(b) speaks of cases “where there is an abuse of power or author-
ity by (X) to the extent that (Y) is inhibited from indicating his or her unwilling-
ness or resistance to the sexual act . . .” This provision refers to cases where Y
is not threatened by physical violence, but X expressly or tacitly uses the pos-
ition of power which he or she exercises over Y to influence Y to consent. For
example, Y is an employee who takes his or her orders from X; X threatens to
dismiss Y from his or her job, or to withhold a promotion from Y to which Y is
entitled, if Y refuses to consent to the intercourse with X. Y’s absence of resist-
ance in this type of situation cannot be construed as valid consent, since there is
no voluntary consent.
________________________

30 K 1958 3 SA 420 (A) 421G; Z 1960 1 SA 739 (A) 745E; F 1990 1 SACR 238 (A) 249.
31 M 1953 4 SA 393 (A) 397–398.
354 CRIMINAL LAW

It has been held that if X, a policeman, threatens Y to lay a charge against her
(Y) of having committed a crime if she does not consent to intercourse, and as a
result of the threat Y then does “consent”, such consent is invalid.32 In S 33 it
was even held that X, a policeman, committed rape when he had intercourse
with Y in circumstances in which he had not threatened Y with some or other
form of harm, but Y believed that X had the power to harm her and X had been
aware of this fear. It is, therefore, clear that if X is somebody like a policeman
who is in a position of power over Y, Y’s “consent” will not be regarded as
valid if the evidence reveals that she apprehended some form of harm other
than physical assault upon her.
(iii) Consent obtained by fraud (s 1(3)(c))
Section 1(3)(c) refers to cases in which “consent” is obtained by fraud. These
provisions merely codify the principles already previously recognised in the
common law.
In the old common-law crime of rape, in which X was always a male and Y
always a female, fraud which vitiated consent was either fraud in respect of the
identity of the man (error personae), as where the woman was led to believe
that the man was her husband,34 or fraud in respect of the nature of the act to
which she “agreed”35 (error in negotio), as when she was persuaded that the act
was not sexual intercourse but some medical operation.36 These principles still
apply under the new Act, although X and Y may now be either male or female.
Misrepresentation of any circumstance other than that mentioned above, such
as X’s wealth, his or her age or, where Y is a prostitute, X’s ability to pay for
Y’s “services”, does not vitiate consent. Thus, if X falsely represents to Y that
he loves her, that he is a famous pop star, sport hero, the owner of a flashy
sports car or a multimillionaire, Y believes X’s story and on the strength of
such a misrepresentation she agrees to intercourse with X, her consent is valid
and rape is not committed. In particular, consent is deemed to be valid where
the woman is misled not about the nature of the act of sexual intercourse but
about the results which will follow on such intercourse.37
The use of the word “including” in section 1(3)(c) should be noted. The word
implies that there may be cases other than those specifically mentioned in sec-
tion 1(3)(c), where fraud may vitiate the consent. Consider in this respect the
following situation: X is HIV-infected, Y is not HIV-infected and would never
give consent to intercourse with a man who is HIV-infected, yet X acquires Y’s
consent by misrepresenting to her that he is not HIV-infected. It is submitted
that in the light of the severe consequences of such a misrepresentation, X’s con-
sent should not be regard as valid consent.38
________________________

32 Volschenck 1968 2 PH H283 (D), Botha 1982 2 PH H112 (E).

33 1971 1 SA 591 (A).
34 C 1952 4 SA 117 (O) 121.
35 Williams 1931 1 PH H38 (E); K 1966 1 SA 366 (RA), Williams [1923] 1 KB 340 (X was
a singing-teacher who pretended to improve Y’s breathing technique by having inter-
course with her); Flattery [1877] 2 QBD 410.
36 Williams 1931 1 PH H38 (E).
37 K 1966 1 SA 366 (RA) 368 (X represented to Y that intercourse with her would cure her
of her infertility problem).
38 For a similar view, see Le Roux 2000 De Jure 293 310.
 SEXUAL CRIMES 355

(iv) Inability by Y to appreciate nature of sexual act (s 1(3)(d))

Section 1(3)(d) deals with cases in which Y is “incapable in law of appreci-
ating the nature of the sexual act”. Once again these provisions contain no prin-
ciples which have not already been recognised previously under the common law.
There is no valid consent if X performs an act of sexual penetration in respect
of Y if Y is asleep, unless, of course, Y has previously, whilst awake, given con-
sent.39 The same applies to a situation where Y is unconscious. Paragraph (iii)
of subsection (3)(d) provides further that consent is not valid if Y is “in an
altered state of consciousness, including under the influence of any medicine,
drug, alcohol or other substance, to the extent that (Y)’s consciousness or judge-
ment is adversely affected”.40
Paragraph (iv) of subsection (3)(d) contains a provision which is very import-
ant in practice: if, at the time of the commission of the sexual penetration Y is a
child under the age of 12 years, any ostensible “consent” by him or her is in law
invalid. Such a child is irrebuttably presumed to be incapable of consenting to
the act of sexual penetration.41 What has to be considered is Y’s true age, not his
or her mental age. If, as in S,42 Y’s real age is 16 but her mental age is only 8,
the presumption does not operate.
Paragraph (v) of subsection (3)(d) provides that the consent is not valid if Y is
“a person who is mentally disabled”.43 The expression “person who is mentally
disabled” is defined in section 1(1) as

“a person affected by any mental disability, including any disorder or dis-

ability of the mind, to the extent that he or she, at the time of the alleged
commission of the offence in question, was –
(a) unable to appreciate the nature and reasonably foreseeable consequenc-
es of a sexual act;
(b) able to appreciate the nature and reasonably foreseeable consequences
of such an act, but unable to act in accordance with that appreciation;
(c) unable to resist the commission of any such act; or
(d) unable to communicate his or her unwillingness to participate in any
such act”.

(v) Marital relationship no defence

Section 56(1) provides that whenever an accused person is charged with rape,
“it is not a valid defence for that accused person to contend that a marital or
other relationship exists or existed between him or her and the complainant”. It
is, therefore, perfectly possible for a husband to rape his own wife.
________________________

39 Ryperd Boesman 1942 1 PH H63 (SWA); C 1952 4 SA 117 (O) 120.

40 For the recognition of this principle under the previous common law, see Ryperd Boesman
supra, K 1958 3 SA 420 (A) 422, 424–426.
41 The same rule applied in common law. See Z 1960 1 SA 739 (A) 742.
42 1951 3 SA 209 (C).
43 Cf the facts in Mayisela 2013 2 SACF 129 (NGP). There is no indication in the judgment
whether X was charged with rape in terms of the common law or in terms of the 2007
statute.
356 CRIMINAL LAW

7 Unlawfulness Absence of consent by Y is not a ground of justification, but

a definitional element of the crime. If it were merely a ground of justification,
the definitional elements of this crime would simply have consisted in sexual
penetration between two persons. This, however, is not recognisable as a crime.44
However, this does not mean that unlawfulness is, therefore, not an element of
the crime. Unlawfulness is an element of all crimes. As far as the present crime
is concerned, unlawfulness may be excluded by the ground of justification
known as official capacity. This will be the case if, for example, X is a medical
doctor who treats Y for some ailment connected with Y’s genital organs, and
who in the course of the examination inserts his or her finger or some object
into Y’s vagina or anus: or who performs these actions in respect of female Y
very shortly after Y had lodged a complaint of having been raped, in order to
ascertain whether, for example, there has been any injury to her vagina.
8 Intention Intention is specifically mentioned in the definition of the crime
in section 3 as a requirement for a conviction. X must know that Y had not con-
sented to the sexual penetration.45 Dolus eventualis suffices, so that it is suf-
ficient to prove that X foresaw the possibility that Y’s free and conscious consent,
as described above, might be lacking, but nevertheless continued to have sexual
penetration.46 Where, as proof of the absence of consent, reliance is placed on
the fact that the girl is under 12 years of age at the time of the commission of
the act, X must be aware of the fact that the girl is not yet 12 years old, or at
least foresee the possibility that she may be under 12.47 Similarly, where, in
order to establish the absence of consent, reliance is placed upon the woman’s
intoxication or her mental defect, or the fact that she was sleeping or was
defrauded, it must be established that X was aware of such a factor vitiating
consent.48
9 Sentence
(a) General
After the decision of the Constitutional Court in Makwanyane49 the death
sentence is no longer a competent sentence to be imposed upon a conviction of
rape. It is similarly no longer possible for a court to order corporal punishment
to be imposed upon X.50 Since the imposition of a fine is not an apt type of sen-
tence for this crime, the only type of sentence which remains is imprisonment.
Before 1997 the courts had a free discretion as to the length of the period of im-
prisonment. It is well known that the incidence of rape in South Africa is alarm-
ingly high. Statistics relating to the prevalence of the crime has already been
________________________

44 See the discussion of the relationship between the definitional elements and unlawfulness
supra III A 5.
45 K 1958 3 SA 420 (A) 421; Z 1960 1 SA 739 (A) 743A, 745D. Although these cases relate
to the old common-law crime of rape, according to general principles they also apply to
the new crime. For a critical appraisal of the present law on this subject, see Smythe,
Pithey and Artz 2.4.1.
46 Z supra 745E–F.
47 Z supra 743A–B, 745G–H.
48 Z supra 745, 746C; K 1958 3 SA 420 (A) 425H; J 1989 1 SA 525 (A) 530.
49 1995 2 SACR 1 (CC).
50 Williams 1995 2 SACR 251 (CC).
 SEXUAL CRIMES 357

given above in the discussion of the crisis of the criminal justice system in
South Africa.51
As a reaction to the high crime level section 51 of the Criminal Law Amend-
ment Act 105 of 1997 was enacted. This makes provision for minimum sen-
tences to be imposed for certain crimes, such as rape, in certain circumstances.
It is clear from section 68(2) of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007, read with the Schedule to this Act, that
the provisions of section 51 of Act 105 of 1997 apply also to the newly defined
statutory crime of rape.
Subsection (6) of section 51 of Act 105 of 1997 provides that the minimum
sentences (to be set out below) are not applicable in respect of a child who was
under the age of 16 years at the time of the commission of the crime.
(b) Imprisonment for life must sometimes be imposed
Section 51(1) of the abovementioned Act provides that a Regional Court or a
High Court must sentence a person convicted of rape to imprisonment for life
in the following circumstances:
(1) where Y was raped more than once by X or by any co-perpetrator or
accomplice;
(2) where Y was raped by more than one person and such persons acted with a
common purpose;
(3) where X is convicted of two or more offences of rape or compelled rape
but has not yet been sentenced;
(4) where X knows that he has acquired the “immune deficiency syndrome or
the human immunodeficiency virus”;
(5) where Y is below the age of 16 years;
(6) where Y is a physically disabled woman who, due to her physical disability,
is rendered particularly vulnerable;
(7) where Y is mentally ill as contemplated in section 1 of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007;
(8) where the rape involved the infliction of grievous bodily harm.
(c) Other minimum periods of imprisonment must sometimes be imposed
If one of the circumstances set out immediately above are not present, X does
not qualify for the mandatory imprisonment for life. However, section 51(2) of
the Act provides that in such a situation a High or regional Court is neverthe-
less obliged to impose the following minimum periods of imprisonment:
(1) ten years in respect of a first offender;
(2) fifteen years in respect of a second offender;
(3) twenty years in respect of a third or subsequent offender.
(d ) Avoidance of minimum sentences
There are always cases where a court is of the opinion that the imposition of
one of the above minimum periods of imprisonment would, considering the
________________________

51 Supra I D 2 (d).
358 CRIMINAL LAW

specific circumstances of the case, be very harsh and unjust. In subsection (3)(a)
of section 51 the legislature has created a mechanism whereby a court may be
freed from the obligation of imposing one of the minimum sentences referred to
above. According to this subsection a court is not bound to impose imprison-
ment for life or for one of the minimum periods of imprisonment set out above,
if there are substantial and compelling circumstances which justify the im-
position of a lesser sentence than the prescribed one. If such circumstances
exist, a court may then impose a period of imprisonment which is less than the
period prescribed by the legislature.
The crucial words in the Act relating to the avoidance of mandatory minimum
sentences are the words “substantial and compelling circumstances”. In grap-
pling with the interpretation of this important expression, the courts initially
came to conclusions which were not always harmonious.52 However, in Mal-
gas 53 the Supreme Court of Appeal considered the interpretation of the words
and formulated a relatively long list of rules to be kept in mind by courts when
interpreting the words.54 Without setting out all these rules, it may be stated that
perhaps the most important of them provides that if a court is satisfied that the
circumstances of the case render the prescribed sentence unjust in that it would
be disproportionate to the crime, the criminal and the needs of society, so that
an injustice would be done by imposing that sentence, it is entitled to impose a
lesser sentence.55
In Dodo56 the Constitutional Court held that the introduction by the legislature
of minimum sentences in section 51 is not unconstitutional.

C COMPELLED RAPE
1 Definition Section 4 defines this crime as follows:

“Any person (“A”) who unlawfully and intentionally compels a third per-
son (“C”), without the consent of C, to commit an act of sexual penetration
with a complainant (“B”), without the consent of B, is guilty of the offence
of compelled rape.”

2 Elements of crime The elements of this crime are the following: (a) com-
pelling a person (Z) (b) to commit an act of sexual penetration with another
person (Y) (c) without the consent of either Y or Z; (d) unlawfulness and (f )
intention.
3 General remarks concerning the crime It is doubtful whether it was at all
necessary to create this crime. Its provisions coincide with the wide formulation
of the crime of rape in section 3. In particular, the words “ . . . any act which
________________________

52 See the cases referred to in Gqomana 2001 2 SACR 28 (C), which was decided just before
the Supreme Court of Appeal delivered the judgment in Malgas infra. For an analysis of
the case law before the decision in Malgas infra, see Terblanche 2001 SACJ 1.
53 2001 1 SACR 469 (SCA).
54 See par [25] of the judgment (481f–482g).
55 See rule I in par [25] of the judgment (482e–f ).
56 2001 1 SACR 594 (CC).
 SEXUAL CRIMES 359

causes penetration . . . by . . . the genital organs of one person into . . . the

genital organs . . . of another person” in the definition of “sexual penetration” in
section 1(1) are wide enough to include conduct by X whereby he or she com-
pels a third party to perform the sexual penetration. Presumably section 6 was
inserted ex majore cautela by the legislature to make doubly sure that compelled
sexual assault is indeed criminalised.
4 Compelling a third person This element is largely self-explanatory. By
“third person” is meant somebody other than the perpetrator X (who is the “first
person”) and the complainant Y (who is the “second person” and the victim of
the crime, because it is he or she who is sexually penetrated). A typical example
of the commission of this crime is where X tells Z that he will kill him if he
does not commit some act of sexual penetration in respect of Y, where it is im-
possible for Z to escape his dilemma and where Z ends up by yielding to the
pressure and performs the deed.57
5 The commission of an act of sexual penetration with another person The
definition of the expression “sexual penetration” has already been quoted and
discussed in detail above in the discussion of the corresponding element in the
crime of rape.58
6 Without the consent of either the third party or the complainant The
doubling of the absence of consent in the definition should be noted. The defin-
itions in section 1 relating to the absence of consent have already been quoted
and discussed in detail above in the discussion of the corresponding element of
the crime of rape.59 Section 56(1) provides that whenever an accused person
is charged with the present crime, “it is not a valid defence for that accused per-
son to contend that a marital or other relationship exists or existed between him
or her and the complainant”. It is, therefore, perfectly possible for a husband to
commit this crime with his own wife, as where he compels Z to have sexual
intercourse with his (X’s) wife Y without Y’s consent.
7 Unlawfulness The unlawfulness of the act may conceivably be excluded if
X is himself or herself compelled to compel Z to perform the act upon Y.
8 Intention The contents of this element have already been set out above in
the discussion of the corresponding element in the crime of rape.60
9 Sentence The provisions in the Criminal Law Amendment Act 105 of 1997
relating to the imposition of certain minimum periods of imprisonment in cer-
tain circumstances apply not only to the crime of rape but also to the present
crime.61 Part I of Schedule 2 of the 1997 Act contains separate provisions relating
to compelled rape. Because of the technical intricacies of these provisions they

________________________

57 A more complete picture of the rules applying to force or duress in criminal law can be
gathered by consulting the discussion of necessity (of which coercion is but a species)
supra IV C.
58 Supra XI B 5.
59 Supra XI B 6.
60 Supra XI B 8.
61 S 68(2) read with the Schedule to the Act.
360 CRIMINAL LAW

will not be set out here; it is sufficient to state that to a large extent they re-
semble the corresponding provisions relating to the crime of rape, which has
already been set out above.62

D SEXUAL ASSAULT
1 Definition Section 5 of the Act defines this crime as follows:

“(1) A person (“A”) who unlawfully and intentionally sexually violates a

complainant (“B”) without the consent of B, is guilty of the offence of
sexual assault.
(2) A person (“A”) who unlawfully and intentionally inspires the belief in
a complainant (“B”) that B will be sexually violated, is guilty of the offence
of sexual assault.”

The expressions “sexually violates” and “without the consent” are further de-
fined in section 1 of the Act. The latter definition, relating to the absence of
consent, has already been quoted and discussed in detail above in connection
with the crime of rape.63 The definition of the expression “sexually violates”
will be quoted and discussed below under the discussions of the element of the
act (“sexual violation”).
2 Elements of crime The elements of the crime are the following:(a) an act
of “sexual violation” of another person; (b) without the consent of the latter per-
son; (c) unlawfulness; and (d) intention.
3 Purpose of crime The purpose of this crime is to criminalise sexual acts
which fall short of actual (non-consensual) penetration of Y. If there is actual
penetration (as this word is defined in the Act) the crime of rape is committed.
If the act falls short of penetration, sexual assault may be committed.
4 The previous crime of indecent assault The crime created in section 5 of
the Act replaces the previous common-law crime of indecent assault. This latter
crime is repealed by section 68(1)(b) of the Act.
Indecent assault at common law consisted in unlawfully and intentionally
assaulting, touching or handling another in circumstances in which either the act
itself or the intention with which it is committed was indecent.64 It covered many
diverse types of indecent actions, ranging from actual physical assault upon the
genital organs of Y, to a mere touching of Y’s so-called “erogenous zones” with-
out Y’s consent. Thus, if male person X merely placed his hand over one of
female person Y’s breasts, above her clothes, without her consent and without
injuring her, he committed the crime. Either the act itself, objectively viewed,
or X’s intention had to be indecent. It was not necessary that Y’s private parts
________________________

62 Supra XI B 9.
63 Supra XI B 6.
64 Snyman Criminal Law 4 ed 436. For a more detailed discussion of the common-law crime,
the discussion of the crime in Snyman’s 4th ed 426–439 or in Burchell and Hunt 691–698
may be consulted. Support for the propositions further in the text relating to this crime may
all be found in Snyman’s discussion of the crime in the 4th ed of his book.
 SEXUAL CRIMES 361

should actually have been touched; any action whereby X aimed with some part
of his or her body at Y’s private parts was sufficient. X could be either a male
or a female and the same applied to Y. Sexual intercourse with a female or a
male per anum without consent constituted indecent assault.65
5 The act: sexual violation
(a) General
At the outset of the discussion of this crime it is necessary to note the termin-
ology used by the legislature. The Act distinguishes between “sexual assault”
and “sexual violation”. These two concepts are not identical. “Sexual assault”
is the name given to the crime, whereas “sexual violation” is the description of
the act rendered punishable in terms of this crime
The act which is made punishable in this crime is either:
(i) the actual “sexual violation” of another person; or
(ii) the inspiring of a belief in the complainant that he or she will be sexually
violated.
The discussion which follows (under the above heading of “5 Sexual violation”)
deals with the first way in which the crime can be committed, namely the actual
sexual violation. The inspiring of a belief of sexual violation is discussed below
in paragraph numbered 6.
(b) Definition of “sexual violation” in the Act
The expression “sexual violation” is defined in a fairly long definition in sec-
tion 1(1) of the Act. The definition reads as follows:

“sexual violation” includes any act which causes –

(a) direct or indirect contact between the –
(i) genital organs or anus of one person or, in the case of a female,
her breasts, and any part of the body of another person or an
animal, or any object, including any object resembling or repre-
senting the genital organs or anus of a person or an animal;
(ii) mouth of one person and –
(aa) the genital organs or anus of another person or, in the case
of a female, her breasts;
(bb) the mouth of another person;
(cc) any other part of the body of another person, other than the
genital organs or anus of that person or, in the case of a
female, her breasts, which could –
(aaa) be used in an act of sexual penetration;
(bbb) cause sexual arousal or stimulation; or
(ccc) be sexually aroused or stimulated thereby; or
continued
________________________

65 M (2) 1990 1 SACR 456 (N) – intercourse per anum with a female; National Coalition
for Gay and Lesbian Equality v Minister of Justice 1998 2 SACR 557 (CC) – intercourse
per anum with a male.
362 CRIMINAL LAW

(dd) any object resembling the genital organs or anus of a person,

and in the case of a female, her breasts, or an animal; or
(iii) the mouth of the complainant and the genital organs or anus of an
animal;
(b) the masturbation of one person by another person; or
(c) the insertion of any object resembling or representing the genital organs
of a person or animal, into or beyond the mouth of another person,
but does not include an act of sexual penetration, and “sexually violates”
has a corresponding meaning.”

(c) Discussion of definition of “sexual violation”

(i) “. . . any act which causes . . .”
As in the statutory crime of rape, the present crime is defined widely so as to
include not only the actual act of X whereby he or she, for example, makes
contact with the body of another, but also any act whereby he or she causes
such contact. The remarks above66 in the discussion of the acts criminalised in
the crime of rape, relating to the words “which causes . . .” in the definition of
that crime, also apply to the interpretation of the wording of the definition
presently under discussion.
(ii) The causing of contact instead of the causing of penetration
At the outset it is important to note that whereas the expression “sexual pene-
tration”, which describes the act in the crime of rape, is defined as “any act
which causes penetration . . .” (italics supplied), the expression “sexual vio-
lation”, which describes the act in the crime of sexual assault, is defined in terms
of “any act which causes . . . contact between . . .” (italics supplied). Sexual
assault, in other words, does not deal with penetration,67 but with “contact” be-
tween two persons, as will be explained hereafter.
(iii) Direct or indirect contact
The definition speaks of “any act which causes . . . direct or indirect contact
between . . .”. “Contact” means the physical touching of two parts of the
different bodies or of a body and an object. “Indirect contact” refers to such
contact through the agency of another person or the use of an instrument, such
as a stick. An example which comes to mind in this respect is where X has a
stick in his hand and inserts the one point of it into Y’s anus. “Indirect contact”
may also exist in X spraying aerosol paint onto Y’s private parts.68
(iv) The wording of paragraph (a)(i)
In the discussion under this subheading the different types of acts included in
the definition of “sexual violation” are listed. They are numbered and set out
in the sequence in which they are referred to in the definition of “sexual

________________________

66 Supra XI B 5(b).
67 This is specifically stated in the second last phrase in the definition of “sexual violation”.
68 Cf X’s act in D 1998 1 SACR 33 (T).
 SEXUAL CRIMES 363

violation”. When reading the different acts listed below, it should be assumed
throughout that the acts take place without Y’s consent.
The wording of paragraph (a)(i) of the definition is wide enough to cover the
following acts:
1 X, who may be either a male or a female, effects a contact between his or
her genital organ and any part of the body of Y, who may likewise be either
a male or a female. In this situation it is X’s genital organ which touches
Y’s body.
2 X, who may be either a male or a female, effects a contact between the
genital organ of Y, who may likewise be either a male or a female, and any
part of his or her own body. In this situation it is Y’s genital organ which
touches X’s body.
3 X, who may be either a male or a female, effects a contact between his or
her anus and any part of the body of Y, who may likewise be either a male
or a female. In this situation it is X’s anus which touches Y’s body.
4 X, who may be either a male or a female, effects a contact between the
anus of Y, who may likewise be a male or a female, and any part of his or
her own body. In this situation it is Y’s anus which touches X’s body.
5 Female X effects a contact between her breasts and any part of the body of
Y, who may be either a male or a female. In this situation it is female X
who is the active party. It does not matter whether X’s breasts are naked or
covered in clothing.
6 X, who may be either a male or a female, fondles the breasts or places his
or her hand over the breast or breasts of female Y. In this situation X is the
active party and female Y is the passive party. It does not matter whether
X’s breasts are naked or covered in clothing.
7 X, who may be either a male or a female, causes or effects a physical con-
tact between the genital organs or anus of Y, who may be either a male or a
female (or the breast(s) of female Y) and any part of the body of an animal.
8 X, who may be either a male or a female, causes or effects a physical con-
tact between the genital organs or anus of Y, who may be either a male or a
female (or the breast(s) of female Y) and any object, including any object
resembling or representing the genital organs or anus of a person or an
animal. Thus, if X causes female Y’s breasts to touch a piece of furniture or
a wall, X’s act falls within the definition.
9 What is the position if X, who may be either male or female, does not make
contact with Y with his or her (X’s) genital organ, anus or (in the case of a
woman) breasts himself or herself, but causes a third party, Z, to make such
contact? For example, X pushes, shoves or forces Z in such a way that the
contact described in the definition takes place. X forces or compels Z to
perform an act of sexual violation. The phrase “any act which causes . . . “
at the beginning of the definition of “sexual violation” is so wide that it
would seem to include this type of behaviour. After all, to compel or force
a third party to perform the act is merely one way of causing the sexual
violation.
However, if one considers the provisions of section 6 of the Act, it is
clear that the legislature intended such conduct to be punished under a
364 CRIMINAL LAW

separate heading, namely that of “compelled sexual assault”. This latter

crime will be discussed below.69 However, section 6 is limited to compelled
sexual violation between X and a third person, that is, a human being. Sec-
tion 6 speaks only of the sexual violation of “a complainant”, and the word
complainant can surely be only a human being. Section 6 does not say any-
thing about compelled sexual violation consisting in contact between Y and
an animal or “any object, including any object resembling or representing
the genital organs or anus of a person or an animal”. It is therefore submit-
ted that forced contact remains punishable as sexual assault in terms of sec-
tion 5. For example, if X forcefully thrusts male Z’s penis, which is
uncovered, Z being naked, against the body of an animal, or against a piece
of furniture or a wall, or against a sex toy representing a woman’s vagina,
X’s conduct falls within the definition of the crime of sexual assault created
in section 5 of the Act.
(v) The wording of subparagraph (a)(ii) – the use of the mouth
The wording of paragraph (a)(ii) of the definition is wide enough to cover the
following acts:
1 X, who may be either a male or a female, places his or her mouth on female
Y’s vagina.
2 X, who may be either a male or a female, causes Y’s penis to come into
physical contact with his or her mouth. If the penis penetrates X’s mouth,
the act falls within the definition of the conduct punishable as rape.
3 X, who may be either a male or a female, places his or her mouth on the
anus of Y, who may be either a male or a female.
4 X, who may be either a male or a female, places his or her mouth on female
Y’s breast.
5 X, who may be either a male or a female, places his or her mouth on the
mouth of Y, who may be either a male or a female. This means that if one
person kisses another without the latter’s consent, he or she commits the
crime of sexual assault. This is surprising. Under the common law such con-
duct did not necessarily amount to indecent assault.70 It may be doubted
whether a person who merely kisses another against the latter’s will neces-
sarily always performs the act with a sexual motive.
6 X, who may be either a male or a female, places his or her mouth on “any
other part of the body of another person, other than the genital organs or
anus of that person or, in the case of a female, her breasts, which could be
used in an act of sexual penetration”.71 The tenth word from the end of this
quotation, namely “which”, refers to the words “any other part of the body”
at the beginning of the quotation. The expression “sexual penetration” is
defined separately in section 1(1) and has already been quoted and dis-
cussed above in the discussion of rape.72 Examples of “part(s) of the body

________________________

69 Infra XI E.
70 Mayo 1969 1 PH H26 (R).
71 Par (a)(ii)(cc)(aaa) of the definition of “sexual violation”.
72 Supra XI B 5.
 SEXUAL CRIMES 365

of another person . . . which could be used in an act of sexual penetration”

are a person’s fingers or toes. Thus, if X sucks Y’s toes (without Y’s con-
sent) his or her conduct also falls within the definition of the act constitut-
ing the present crime.
7 X, who may be either a male or a female, licks or touches with his or her
mouth the abdomen, back or buttocks of Y, who may be either a male or a
female. The licking or touching with the mouth of any part of Y’s body
other than Y’s genital organs, anus or breasts qualifies, as long as that part
of Y’s body which is licked or touched with the mouth is such that the lick-
ing or touching “could . . . cause sexual arousal or stimulation”.73 What is
intended in the phrase just quoted is sexual arousal or stimulation of X, and
not of Y.74
8 X, who may be either a male or a female, performs the same act as that de-
scribed immediately above, but the licking or touching is in respect of “any
other part of (Y’s) body . . . which could . . . be sexually aroused or stimu-
lated thereby.”75 The sexual stimulation referred to here is not that of X, but
of Y.
9 X, who may be either male or female, places Y’s mouth against a plastic sex
toy representing “the genital organs or anus of a person” or of an animal.76
10 X places Y’s mouth against the genital organs or anus of an animal.
11 What is the position if X does not perform the act described above in acts
numbered 1 to 10 himself or herself, but forces a third party, Z, to perform
the act? For example, X forces Z to place his or her mouth against the vagina
or anus of Y. It is submitted that such conduct is not punishable as contra-
vention of section 5 (sexual assault), but of section 6 (compelled sexual
assault), which is discussed below.77 If it were punishable as a contraven-
tion of section 5, the provisions of section 6 would be rendered nugatory. It
is furthermore submitted that if X forces Y to masturbate himself or herself,
X’s conduct is punishable as contravention of section 7 (compelled self-
sexual assault), and that X should then not be charged under the present
section.
(vi) The wording or paragraph (b) – causing masturbation
According to paragraph (b) of the definition of “sexual violation”, the crime
can also be committed by any act which causes “the masturbation of one person
by another person”. An example of such conduct is where X uses his own hands
to cause a masturbation by Y.
It is submitted that if X forces a third party, Z, to cause a masturbation of Y,
the conduct is not punishable as contravention of section 5 (sexual assault), but
of section 6 (compelled sexual assault). A different interpretation would mean
that section 6 would be rendered redundant.
________________________

73 See par (a)(ii)(cc)(bbb) of the definition of “sexual violation”.

74 Cf the difference in wording between par (a)(ii)(cc)(bbb) and par (a)(ii)(cc)(ccc) in the
definition of “sexual violation”.
75 Par (a)(ii)(cc)(ccc) of the definition of “sexual violation”.
76 Par (a)(ii)(dd) of the definition of “sexual violation”.
77 Infra XI E.
366 CRIMINAL LAW

(vii) The wording of paragraph (c)

According to paragraph (c) of the definition of “sexual violation” the crime
can also be committed by “the insertion of any object resembling or representing
the genital organs of a person or animal, into or beyond the mouth of another
person”. An example in this respect is where X, who may be either a male or a
female, places a plastic representation of a penis into Y’s mouth.
(viii) “Subjective indecency” not sufficient
The wording of the definition of the crime refers to conduct which may be
described as “indecent” from an objective point of view, that is, viewed from
the outside, without having regard to X’s motive or intention. What is the pos-
ition if X performs an act in respect of Y which is not objectively indecent, that
is, which cannot be brought under the description of the conduct set out in the
definition of “sexual violation”, but which is nevertheless performed by X with
an indecent intention. Say, for instance, that, as happened in the case of F,78 X
hits Y, who is lying naked on his stomach, on his (Y’s) buttocks with a stick,
and while doing so, states that he (X) is obtaining sexual gratification by per-
forming this act. Under the old common-law crime of indecent assault it was
held in F’s case that X is guilty of indecent assault, but it would seem that X
cannot, when performing a similar act, be found guilty of committing the new
statutory crime of sexual assault. Although his intention or motive was indecent,
the act, objectively viewed, was not.
(ix) Importance of the word “includes”
The third word in the definition, namely “includes”, is important. The impli-
cation of this word is that the punishable acts included in this crime are not
limited to those expressly mentioned in the definition, but that it is possible that
other acts, not expressly mentioned in the definition, may also amount to the
commission of the crime. Acts which can fall under the statutory definition of
“sexual violation” have been discussed immediately above. Examples of acts
which do not fall under this statutory definition (or which at least cannot readily
be construed as falling thereunder), but which nevertheless amount to “sexual
violation”, are the following:
1 X lifts the dress of Y, a woman, in order to see what it looks like under the
dress;
2 X puts his hand under the dress of Y, a woman, but does not succeed in
making any contact with Y’s body.
3 X, a male, aims with his hand to the genital organ, breast or buttock of Y, a
fully clad woman, but he does not succeed in making contact with Y’s body
because Y or somebody else prevents him from doing this.79
6 Inspiring a belief that sexual violation will take place The second way in
which the crime of sexual assault may be committed, is by X inspiring a belief
in Y that Y will be sexually violated.80 The name of the present crime is “sexual
assault”, and from this one may deduce that the legislature intended this crime
to be some species of the common-law crime of assault. As will be pointed out
________________________

78 1982 2 SA 580 (T).

79 Curtis 1926 CPD 385 389–390; A 1993 1 SACR 600 (A) 607g–j.
80 S 5(2).
 SEXUAL CRIMES 367

below81 in the discussion of that crime, assault can be committed in two ways,
namely
(a) by an act which infringes Y’s bodily integrity – something which usually
takes the form of the actual application of force to Y; and
(b) by the inspiring of a belief in Y that Y’s bodily integrity is immediately to
be infringed.
The legislature obviously wanted a similar principle to apply to the crime of
sexual assault.82
However, subsection (2) of section 5, which describes this way of commit-
ting the crime, does not set out the prerequisites for holding that the inspiring of
a belief that sexual violation will take place amounts to a sexual violation. It is
submitted that the same principles applying to the form of assault known as the
inspiring of a belief that Y’s bodily security is about to be infringed, and which
will be set out and explained in the discussion of assault below,83 also apply to
the way in which sexual assault may be committed. To avoid unnecessary repe-
tition, all these rules will not be set out here in detail again. In an abbreviated
form, they may be described as follows:
1 The threat must be one of immediate violence. Thus, a threat to violate Y
sexually the next day, is not sufficient.
2 The threat must be one of personal violence against Y. A threat of violence
not against Y, but against somebody else, is not sufficient. Nor is a threat of
violence or damage to property belonging to Y or somebody else sufficient.
3 Y must subjectively believe that he or she will be sexually violated. If, for
whatever reason, Y does not fear the threat, the crime is not committed.
4 Y’s subjective fear need not be reasonable.
5 The threat need not necessarily consist in some physical act or gesture. A
verbal threat is sufficient.
X may be either a male or a female, and the same applies to Y.
7 Absence of consent The act of sexual violation as set out above must take
place without the consent of the complainant. The word “consent” as used in
the definition of the crime is defined in section 1(2) as “voluntary or uncoerced
agreement”. Section 1(3) contains a long and important provision dealing with
the interpretation of the words “voluntary or uncoerced”. This provision has
already been quoted and discussed in detail above in the discussion of the
corresponding requirement in the crime of rape84 and this definition and dis-
cussion will accordingly not be repeated here. When consulting the said dis-
cussion, the expression “sexual act” must be read as referring to “sexual vio-
lation”, as opposed to “sexual penetration”.85
________________________

81 Infra XV A 4.
82 In point 2.2.2 of the “Memorandum on the Objects of the . . . Bill” attached to the Bill
(which later became the Act), the following is stated: “Sexual assault is a form of assault
and all principles applicable to assault common (sic) are also applicable to the specific
forms of assault, in this case sexual assault.”
83 Infra XV A 4 (c).
84 Supra XI B 6.
85 Cf the definition of “sexual act” in s 1(1), which stipulates that this expression refers to
either an act of sexual penetration or an act of sexual violation.
368 CRIMINAL LAW

Section 56(1) provides that whenever an accused person is charged with

sexual assault, “it is not a valid defence for that accused person to contend that
a marital or other relationship exists or existed between him or her and the com-
plainant”. It is, therefore, perfectly possible for a husband to commit sexual
assault in respect of his own wife.
8 Unlawfulness An act which complies with the definitional elements of the
crime may possibly be justified on the ground of justification known as neces-
sity in the form of duress, as where a third party, Z, threatens to kill or seriously
injure X if he (X) does not commit an act of sexual violation against Y, and
where X yields and commits the act.
9 Intention Intention is specifically mentioned in the definition of the crime
in section 5 as a requirement for a conviction. X must know that Y had not con-
sented to the sexual violation. The same principles as those set out above86 in the
discussion of the corresponding element in the crime of rape, also apply to the
element of intention in this crime. In order to have intention in the legal sense
of the word (dolus), X must be aware of the fact that his conduct is not covered
by a ground of justification.87

E COMPELLED SEXUAL ASSAULT

1 Definition Section 6 defines the crime of compelled sexual assault as
follows:

“A person (“A”) who unlawfully and intentionally compels a third person

(“C”), without the consent of C, to commit an act of sexual violation with a
complainant (“B”), without the consent of B, is guilty of the offence of
compelled sexual assault.”

2 Elements of crime The elements of the crime are the following: (a) com-
pelling a third person; (b) to commit an act of sexual violation with another per-
son (the complainant); (c) without the consent of either the third person or the
complainant; (d) unlawfulness and (e) intention.
3 Reason for crime’s existence It is doubtful whether it was at all necessary
to create this crime. Its provisions coincide with the wide formulation of the
crime of sexual assault in section 5. In particular, the words “ . . . any act which
causes . . . contact between the . . . genital organs . . . of one person . . . and the
body of another person” in the definition of “sexual violation” in section 1(1) are
wide enough to include conduct by X whereby he or she compels a third party
to perform the sexual violation. Presumably section 6 was inserted ex majore
cautela by the legislature to make doubly sure that compelled sexual assault is
indeed criminalised.
4 Compelling a third person This element is largely self-explanatory. By
“third person” is meant somebody other than the perpetrator X (who is the “first
person”) and the complainant Y (who is the “second person” and the one who is
sexually violated). A typical example of the commission of this crime is where
________________________

86 Supra XI B 8.
87 D 1998 1 SACR 33 (T).
 SEXUAL CRIMES 369

X tells Z that he will kill him if he does not commit some act of sexual viola-
tion in respect of Y, where it is impossible for Z to escape his dilemma and
where Z ends up by yielding to the pressure and performs the deed.88 In the dis-
cussion above of the crime of sexual assault, it was pointed out a number of
times that if X forces Z to perform an act which amounts to a sexual violation
upon Y, and Z yields to the pressure and does as instructed, X should not be
convicted of sexual assault, that is, contravention of section 5, but of compelled
sexual assault, that is, contravention of section 6. A different interpretation of
the wording of section 5 would render the provisions of section 6 nugatory.
5 The commission of an act of sexual violation with another person The
definition of the expression “sexual violation” has already been quoted and dis-
cussed in detail above in the discussion of the corresponding element in the crime
of sexual assault.89
6 Without the consent of either the third party or the complainant The
definitions in section 1 relating to the absence of consent have already been
quoted and discussed in detail above in the discussion of the corresponding elem-
ent of the crime of rape.90 Section 56(1) provides that whenever an accused per-
son is charged with this crime, “it is not a valid defence for that accused person
to contend that a marital or other relationship exists or existed between him or
her and the complainant”. It is, therefore, perfectly possible for a husband to
commit this crime in respect of his own wife, as where he compels Z to commit
an act of sexual violation in respect of his wife Y without Y’s or Z’s consent.
7 Unlawfulness The unlawfulness of the act may conceivably be excluded if
X is himself or herself compelled to compel Z to perform the act upon Y.
8 Intention The contents of this element have already been set out above in
the discussion of the corresponding element in the crime of rape.91

F COMPELLED SELF-SEXUAL ASSAULT

1 Definition Section 7 of the Act defines the crime of compelled self-sexual
assault as follows:

“7. A person (“A”) who unlawfully and intentionally compels a complain-

ant (“B”), without the consent of B, to –
(a) engage in –
(i) masturbation;
(ii) any form of arousal or stimulation of a sexual nature of the female
breasts; or
(iii) sexually suggestive or lewd acts, with B himself or herself;
continued
________________________

88 A more complete picture of the rules applying to force or duress in criminal law can be
gathered by consulting the discussion of necessity (of which coercion is but a species)
supra IV C.
89 Supra XI D 5.
90 Supra XI B 6.
91 Supra XI B 8.
370 CRIMINAL LAW

(b) engage in any act which has or may have the effect of sexually arous-
ing or sexually degrading B; or
(c) cause B to penetrate in any manner whatsoever his or her own genital
organs or anus, is guilty of the offence of compelled self-sexual assault.”

2 Elements of crime The elements of this crime are the following; (a) the
compelling of somebody else; (b) to engage in the conduct set out in the defin-
ition; (c) without the consent of the other person; (d) unlawfulness; and (e)
intention.
3 General remarks on the crime This crime differs from the crime of com-
pelled sexual assault defined in section 6 in the following respect: section 6
deals with situations in which there are three parties, the first one being the per-
petrator (X), the second one the person in respect of whom the crime is commit-
ted (Y), and the third one the party who is compelled to perform the act (Z). The
crime created in section 7, however, deals with situations in which there are only
two parties, namely the perpetrator (X) and the victim (Y). X compels Y to per-
form the “indecent” act upon Y himself or herself.
4 Compelling somebody else This element is largely self-explanatory. A typ-
ical example of conduct punishable under this section is where X tells Z that he
will kill him if, for example, he does not masturbate himself, where it is impos-
sible for Z to escape his dilemma and where Z ends up yielding to the pressure
and performs the deed.92
5 Conduct proscribed in definition The acts described in the definition all
amount to acts whereby X, who may be either a male or a female, forces Y,
who may likewise be either a male or a female, to stimulate himself or herself
sexually. There are some rather vague expressions in parts of the definition,
such as “suggestive or lewd acts” and “sexually degrading”. These expressions
should be interpreted eiusdem generis, that is, in the light of the meanings of
other more concrete instances mentioned in the definition, as well as the general
purpose of section 7 as a whole. The act described in paragraph (c) refers to situ-
ations where Y is forced to penetrate himself or herself, such as to insert his or
her finger in his or her vagina or anus.
6 Absence of consent The definitions in section 1 relating to the absence of
consent have already been quoted and discussed in detail above in the discussion
of the corresponding element of the crime of rape.93 Section 56(1) provides
that whenever an accused person is charged with this crime, “it is not a valid
defence for that accused person to contend that a marital or other relationship
exists or existed between him or her and the complainant”. It is, therefore, per-
fectly possible for a husband to commit this crime in respect of his wife.
7 Unlawfulness The unlawfulness may conceivably be excluded if X is him-
self or herself compelled to compel Y to perform the act.
________________________

92 For a more complete picture of the rules applying to force or duress in criminal law, see
the discussion of necessity (of which coercion is but a species) supra IV C.
93 Supra XI B 6.
 SEXUAL CRIMES 371

8 Intention The contents of this element has already been set out and dis-
cussed above in the discussion of the corresponding element in the crime of
rape.94

G COMPELLING ANOTHER TO WATCH SEXUAL ACTS

1 General Sections 8 and 21 create a number of crimes consisting in compel-
ling another person (Y) to be in the presence of or watch X commit a sexual
offence or sexual act with another or while X engages in an act of self-
masturbation. The two sections are identically worded, except that section 8 is
applicable to cases where Y is 18 years or older, whereas section 21 in applic-
able where Y is a child. The word “child”, as used in section 21, is defined in
s 1(1) as a person under the age or 18 years. Because of the similarity in the
wording of these two sections, it is feasible to discuss them together.
2 Compelling Y to watch sexual offence According to subsection (1) of both
these sections X commits a crime if he or she unlawfully and intentionally com-
pels or causes Y to be in the presence of or watch X commit a sexual offence.
The expression “sexual offence” is defined in section 1(1) as any offence in
terms of certain chapters and sections of the Act. All the sexual offences dis-
cussed in this book fall within the ambit of this definition. The crime is also
committed if X compels Y to be in the presence of or watch, not X, but a third
party, Z, commit the crime, or while X and Z together commit a crime. Y should
not have consented to being present or to watching the deed.95 It matters not
whether the compelling of Y to be present or watch the deed is for the sexual
gratification of X or of Z or without any motive of sexual gratification. X may
be either a male or a female, and the same applies to Y.
3 Compelling Y to watch sexual act According to subsection (2) of both
sections 8 and 21, X commits a crime if he or she unlawfully and intentionally
compels or causes Y to be in the presence of or watch (a) X while he or she
engages in a sexual act with Z or another person (W) or (b) Z while he or she
engages in a sexual act with W. The expression “sexual act” is defined in sec-
tion 1(1) as an act of either sexual penetration or an act of sexual violation. The
two latter expressions are both further defined in section 1(1) and these def-
initions have already been quoted and discussed above.96 Y should not have
consented to being present or to watch the deed. It matters not whether the
compelling of Y to be present or watch the deed is for the sexual gratification
of X or Z or without any motive of sexual gratification. X may be either a male
or a female, and the same applies to Y.
4 Difference between above two crimes The difference between the crime
created in subsection (1) and that created in subsection (2) is the following:
Subsection (1) speaks of a “sexual offence”. This implies that all the require-
ments for liability, including absence of consent by the victim, must be present.
Subsection (2), however, speaks of only a “sexual act” – an expression which
________________________

94 Supra XI B 8.
95 Pretorius 2013 1 SACR 261 (WCC).
96 Supra XI B 5 (sexual penetration); XI D 5 (b) (sexual violation).
372 CRIMINAL LAW

means either sexual penetration or an act of sexual violation. Such a sexual act
can be committed even if the person in respect of whom it is committed is a
consenting party. Thus, if X forces another to watch the commission of a crime
such as rape, to which the victim has not consented, subsection (1) is contra-
vened. If, however, X forces another to watch as he performs an act of sexual
penetration or violation with the consent of the person in respect of whom the
act is committed, it is subsection (2) that is contravened.
5 Compelling Y to watch self-masturbation According to subsection (3) of
both sections 8 and 21, X commits a crime if he or she compels or causes Y to
be in the presence of or watch X or another person (Z) engage in an act of self-
masturbation. Y should not have consented to being present or to watch the
deed. It matters not whether the compelling of Y to be present or watch the
deed is for the sexual gratification of X or Z or without any motive of sexual
gratification. X may be either a male or a female, and the same applies to Y.

H EXPOSING GENITAL ORGANS,

ANUS OR BREASTS (“FLASHING”)
1 General Sections 9 and 22 create crimes consisting in exposing the genital
organs, anus or female breast to another person, Y, without Y’s consent. Sec-
tion 9 is applicable to cases where Y is 18 years or older, whereas section 22 in
applicable to cases where Y is a child. The word “child”, as used in s 22, is
defined in section 1(1) as a person under the age or 18 years.
The two sections are identically worded, except for the following point of
difference: in the case of the crime created in section 9 (exposure to a person 18
years or older), the exposure must take place without the consent of Y, whereas
in the case of the crime created in section 22 (exposure to a person under the
age of 18), the crime is committed even if Y had consented to the exposure.
Because of the degree of similarity in the wording of these two sections, it is
feasible to discuss them together. This type of behaviour is sometimes referred
to as “flashing”.
The conduct punishable in terms of these sections overlaps certain conduct
punishable under the common-law crime of public indecency. It is noticeable
that section 68(1), which repeals certain common-law crimes such as rape and
indecent assault, does not repeal the common-law crime of public indecency.
Thus, if X exposed his or her genital organs in public, he or she may be charged
with either contravention of these sections of the Act, or with the common-law
crime of public indecency.
2 Requirements of crime According to these sections, X commits a crime if
he or she unlawfully and intentionally exposes or displays his or her genital
organs or anus to Y. If Y is 18 years of older, he should not have consented to
the exposure. X may also be a female, and in such a case she likewise commits
the crime if she exposes her breasts to X without his or her consent. X also
commits the crime if it is not his own genital organs or anus which he displays
to Y, but that of a third party, Z. X furthermore commits the crime if he or she
does not perform the exposure himself or herself, but causes somebody else to
perform the exposure. It matters not whether the exposure is performed for the
sexual gratification of X or of Z or without any motive of sexual gratification.
X may be either a male or a female, and the same applies to Y.
 SEXUAL CRIMES 373

Nowhere in the wording of sections 9 or 22 is it required that Y should have

felt degraded or disgusted by X’s conduct. It follows that the crime is commit-
ted even if Y enjoys the unexpected sight of X’s naked genitals or breasts.
3 Unlawfulness The unlawfulness of X’s deed may be excluded by neces-
sity, as where the building in which X finds himself is on fire and X, who hap-
pens to be naked in his bathroom when the fire breaks out, rushes naked out of
the building and is seen by other people. Furthermore, the legal convictions or
boni mores of society do not regard topless bathing on certain beaches (of which
there are but a few in South Africa) as unlawful.
4 Intention As far as the requirement of intention is concerned, X must know
that his or her genital organs, anus or breasts is exposed, that he or she is being
seen in this condition by Y, and that Y did not consent to what happens.

I DISPLAYING CHILD PORNOGRAPHY

1 Discussion of crime According to section 10, X commits a crime if he or
she unlawfully and intentionally exposes or displays child pornography to Y. Y
must be 18 years or older. If Y is younger than 18, a different section of the Act,
namely section 19, is contravened. The expression “child pornography” is fur-
ther defined in section 19.97 X commits the crime not only if he or she displays
the pornography himself or herself, but also if he or she causes another person
to perform the displaying. The crime is committed irrespective of whether Y
consents to the displaying or not. It matters not whether the exposure is per-
formed for the sexual gratification of X or of a third person, Z, or without any
motive of sexual gratification. X may be either a male or a female, and the same
applies to Y.

J ENGAGING SEXUAL SERVICES FOR REWARD

(PROSTITUTION)
1 Definition Section 11 defines this crime as follows:

“11 A person (“A”) who unlawfully and intentionally engages the services
of a person 18 years or older (“B”), for financial or other reward, favour or
compensation to B or to a third person (“C”) –
(a) for the purpose of engaging in a sexual act with B, irrespective of
whether the sexual act is committed or not; or
(b) by committing a sexual act with B,
is guilty of engaging the sexual services of a person 18 years or older.”

2 Elements of crime The elements of the crime are the following: (a)
“engaging” (b) the “services” (c) of a person 18 years or older (d) in order to
commit a sexual act (e) for reward (f ) unlawfulness and (g) intention.

________________________

97 For a critical analysis of this definition, see Terblanche and Mollema 2011 SACJ 283.
374 CRIMINAL LAW

3 General observations about the crime The section under discussion here
codifies the well-known crime of prostitution. The briefest definition of prostitu-
tion is “sex for reward”. Both parties consent to the act. If the passive party does
not consent, rape is committed if the active party continues with the sexual pene-
tration. Prostitution is truly mankind’s oldest profession, having been practised
throughout recorded history. The law may approach this phenomenon from a
number of different perspectives.
Firstly, the law may hold the view that prostitution should not be punished at
all, but should be allowed without any interference. Such an approach is un-
acceptable in almost all societies, for the following reasons: prostitution pro-
motes sexual licentiousness and immorality in general; contributes to the spread
of venereal diseases; degrades women; and leads to other crimes closely con-
nected to prostitution, such as intimidation, corruption and dealing in and using
drugs.
Secondly, the law may prohibit prostitution in all its forms and on all levels.
The objection to such an approach is that no statute has ever been able to change
human nature. It has been said that every person who walks on this earth carries
in himself or herself a volcano – that is the sexual urge – which periodically
threatens to erupt. Experience has taught that such an absolute prohibition could
never work in practice. A large part of society will always find ways to satisfy
its sexual urges, and legal provisions will not deter such persons or make it
impossible for them to do so. Moreover, there is merit in the argument often
advanced that the law should not criminalise actions of two adults performed in
the private of their homes or rooms and with mutual consent, which does not
cause any harm to any other person or society.
A third approach is one which is a compromise between the two approaches
described above. (The two approaches set out above may be described as repre-
senting the two extreme approaches to the subject.) According to this third
approach, prostitution is allowed, but its practice is curbed, first, by means of
administrative measures, such as the licencing of prostitutes and brothels, and in
some cases even the drawing up of geographical borders within which they have
to operate. A second way of curbing free prostitution is by enacting measures
which make it difficult for prostitutes to ply their trade. Examples of such
measures are: prohibiting prostitutes from advertising their services; prohibiting
the keeping of a brothel; prohibiting prostitutes or somebody else on their behalf
to entice others to use their services; prohibiting people from bringing would-be
customers into contact with prostitutes; or prohibiting people from enticing, for
example, women, especially young and destitute women, to become prostitutes.
According to this third approach, it is usually not a crime to be a prostitute or to
have intercourse with a prostitute, but their operations are severely hampered in
practice.
Before 1988 South African law, broadly speaking, followed the third approach
set out above, However, in 1988, surprisingly, the law governing prostitution
was amended in such a way that the “compromise approach” was replaced by a
total prohibition on prostitution. Thus, since 1988, South African law favoured
the second approach set out above.
4 Prostitution and the Constitutional Court Before the Act presently under
discussion was enacted, the matter was governed by the provisions of section
 SEXUAL CRIMES 375

20(1)(aA) of the old Sexual Offences Act 23 of 1957 (which was replaced by
the provisions of the Act presently under discussion). Section 20(1)(aA) pro-
vided that any person who has unlawful carnal intercourse with another person
for reward, commits a crime. This old crime was worded in such a way that it
was the prostitute offering his or her services for payment who committed the
crime, and not the person who had intercourse with the prostitute and who paid
him or her for the “service”. Taking into account that in practice prostitutes are
mainly female, the question arose whether section 20(1)(aA) did not amount to
unfair discrimination against women, because it is mostly, if not always, women
who are punished for their actions, whereas the man who had intercourse with
her, was not criminally liable.
In Jordan98 the Constitutional Court considered the constitutionality of sec-
tion 20(1)(aA). With a majority of 6 to 5 judges the court found that the section
was indeed constitutional. The majority decision was based on the argument that
the section is worded in such a way that both a male and a female prostitute may
transgress the provision, which means that the provision was, therefore, gender
neutral. Furthermore, the majority of the court found that both the man who pays
a woman for sex, and the woman who receives such payment, commit a crime.
According to the court the man is liable as a socius criminis, that is, an accom-
plice, in terms of the common law, because he enables or promotes the commis-
sion of the crime by the woman. The man may, furthermore, also be guilty of
incitement or conspiracy to commit the crime. Accordingly, there is no discrim-
ination against women, as both the man and the woman may be prosecuted.
Even if some form of discrimination could be construed, such discrimination,
according to the court, is justified, as the whole aim of the prohibition of prosti-
tution was to prohibit commercial sex, with all the concomitant social maladies
in its wake. The contents of section 11 of the present crime are based upon the
conclusion reached by the majority of judges in the Jordan case.99
The majority decision is open to criticism. The overwhelming majority of
prostitutes are women, and the men who pay them for their services are in prac-
tice never charged as accomplices to the commission of the crime, or of con-
spiracy or incitement. The majority decision is surprisingly conservative in its
approach to enforcing morality, and it is difficult to reconcile the majority judg-
ments with the liberal attitude of the very same court in respect of consensual
sex between people of the same sex in National Coalition for Gay and Lesbian
Equality v Minister of Justice.100
5 X and Y may be either male or female A notable aspect of the definition
of the present crime is that its wording is so wide that X may be either a male
or a female, and the same applies to Y. Accordingly, a female who obtains a
male for sex for reward renders herself guilty, as much as a male who obtains a
female for the same purpose. X and Y may also both belong to the same sex.

________________________

98 2002 2 SACR 499 (CC).

99 See the comments in par 2.2.3 of the memorandum attached to the Bill before it was
adopted by Parliament.
100 1998 2 SACR 553 (CC). For criticism of the Jordan case, see Jivan and Perumal 2004
SACJ 368; Knoetze 2003 TSAR 558.
376 CRIMINAL LAW

This section targets both the prostitute and the client who engages the services
of the prostitute.101
6 “Engaging” The act consists in “engaging” the services of another. The act
of “engaging” may consist in an express request by X to Y to commit a sexual
act with him or her, or in tacit conduct on the part of X. Thus, the conduct of a
female (or even a male?) who makes certain suggestive movements with her (or
his) body in public, sending out a “message” or “code” to somebody else that
she or he is available for sex for reward, may be sufficient to comply with the
requirement of “engaging the services”.102
7 “Services” The word “services” is not defined in the Act. Its meaning must
be coloured by the words “sexual act” later in the definition.
8 A person older than 18 years Y must be a person who is older than 18
years of age. This does not mean that if X pays Y, who is younger than 18 years,
to have sex with him or her, he or she is not guilty of any crime. X will then
render himself or herself guilty of contravening section 17, which will be dis-
cussed below.103 Section 17 is worded exactly the same as section 11, except
that the expression “a person 18 years or older” is replaced by the expression “a
child complainant”.
9 For the purpose of engaging in a sexual act According to paragraph (a)
of the definition X commits the crime if he or she engages the services of
another “for the purpose of engaging in a sexual act with B, irrespective of
whether the sexual act is committed or not”. This means that the crime is com-
pleted the moment X has obtained the services of another person, even if the
actual sexual act has not yet taken place. In this respect the definition of the
crime resembles that of corruption, which is equally committed even if X is
apprehend after making or accepting an offer, but before the other party could
perform his or her part of the deal.104 In this respect it also resembles the crime
of incitement to commit a crime.105 This means that X commits the crime even
if the other party is a police trap, who agrees only ostensibly to the commission
of the sexual act, but whose real intention is not to perform the act but to inform
the police of X’s conduct.
“Sexual act” is defined in section 1(1) as an act of sexual penetration or an
act of sexual violation. The latter two expressions are both further defined in
long definitions in section 1(1). These definitions have already been quoted and
discussed above.106 If one bears the meanings of these expressions in mind, it is
________________________

101 See point 2.2.3 of the “Memorandum on the Objects of the . . . Bill”: “This clause (s 8)
targets the client of an adult prostitute. In the case of S v Jordan the Constitutional Court
held that the law already criminalises a client if he or she engages the services of a pros-
titute. This clause, therefore, not only confirms the existing law, but also addresses the
unacceptable consequences of the selective application of the law, as pointed out by the
Constitutional Court, whereby the clients are not arrested, charged and prosecuted for
contraventions of this nature.”
102 Zeelie 1952 1 SA 400 (A) 410.
103 Infra XI N 4 (b).
104 Infra XIII A.
105 Supra VIII D.
106 Supra XI B 5 (sexual penetration); XI D 5 (sexual violation).
 SEXUAL CRIMES 377

clear that the crime is committed even if the sexual act does not consist of full
penetration, but some “lesser” sexual act, such as masturbation or an act caus-
ing only sexual stimulation. In fact, the definition of the present crime, read
with the definitions of “sexual penetration” and “sexual violation”, is so wide
that X commits it even if he only asks Y for permission to kiss him or her in
return for payment of money!107
10 “. . . by committing a sexual act . . .” According to paragraph (b) of the
definition X commits the crime also if he or she engages the services of another
“by committing a sexual act with B”. As pointed out above, “sexual act” is
defined in section 1(1) as either an act of sexual penetration or one of sexual
violation.
11 For reward, favour or compensation X must engage the services of
another “for financial or other reward, favour or compensation”. Since the
reward is not limited to monetary or patrimonial reward, the conduct of X, a
female, falls within the definition also if, for example, she agrees to have sex
with Y, a male, on condition that Y moves certain heavy furniture for her in her
apartment or takes her dog for a walk in the park.
The reward, favour or compensation need not necessarily be to Y’s advantage.
It may likewise be to the advantage of a third party, Z. Thus, the conduct of X,
a female, falls within the definition also if, for example, she agrees to have sex
with Y, a male, on condition that Y moves certain heavy furniture in the apart-
ment of Z, a female friend of X, or that Y takes Z’s dog for a walk in the park.
12 Liability of prostitute The section does not expressly criminalise also the
activity of Y, the prostitute. However, it is clear that Y’s conduct enables X to
perform his activity and therefore, according to the general principles relating
to accomplice liability, Y may be convicted of being an accomplice to the crime
committed by X.108
13 Unlawfulness Apart from coercion, the unlawfulness of the conduct may
be excluded by official capacity, such as where Y is a police trap.
14 Intention X must know that Y is 18 years or older, that the act in respect
of which Y is engaged, is a “sexual act” as defined in the Act, and that Y has
agreed to the act for reward or compensation.
15 Is the crime an anachronism? The entire present law regarding the crim-
inalisation of prostitution is an anachronism. One merely has to glance at the
numerous smalls in the press to realise how many women, and also men, adver-
tise their sexual “services” to realise that the decision in Jordan, according to
which prostitution is a crime, is of little or no practical effect. These advertise-
ments might not expressly speak of sex, but only somebody who is a complete
stranger to the ways of the world would fail to understand their implicit sexual
connotations. Nevertheless, prosecutions for prostitution are virtually non-
existent. The majority decision in Jordan cannot be endorsed.
________________________

107 See par (a)(ii)(bb) of the definition of “sexual violation” in s 1(1).

108 For an exposition of the liability of an accomplice, see supra VII C. Cf also the reason-
ing in Jordan 2002 2 SACR 499 (CC) par 14.
378 CRIMINAL LAW

K INCEST
1 Definition Section 12 (1) defines the crime of incest as follows:

“12. (1) Persons who may not lawfully marry each other on account of
consanguinity, affinity or an adoptive relationship and who unlawfully and
intentionally engage in an act of sexual penetration with each other, are,
despite their mutual consent to engage in such act, guilty of the offence of
incest.”

The expressions “consanguinity”, “affinity” and “adoptive relationship” are fur-

ther circumscribed in subsection (2). These definitions will be quoted and dis-
cussed below in paragraph 5.
2 Elements of crime The elements of the crime are the following: (a) an act
of sexual penetration; (b) between two people who may not lawfully marry
each other on account of consanguinity, affinity or adoptive relationship; (c)
unlawfulness and (d) intention.
3 General remarks on the crime Generally speaking, section 12 merely
codifies the common-law crime of incest. There is, however, the following
significant difference between the old and the new crime: the act prohibited
under the old common-law crime was limited to actual sexual intercourse in the
“old”, conventional traditional sense of the word, that is, the penetration of the
female’s vagina by the male’s penis, whereas the act prohibited under the new
statutory crime is much wider, because the definition of “sexual penetration” in
section 1(1) includes such acts as penetration of Y’s anus or mouth by X’s
penis, the insertion of some other part of X’s body, such as his finger or any
object, into Y’s vagina, anus or mouth and even the insertion of the genital
organs of an animal into Y’s vagina, anus or mouth.
The Act does not spell out all the finer details relating to what is meant by
consanguinity, affinity and adoptive relationship for the purposes of incest. It is
reasonable to presume that the courts will, as far as these points of detail are
concerned, follow or at least consult the previous cases dealing with the former
common-law crime. For this reason these cases or sources are still important;
they will be referred to below.
4 Act of sexual penetration The expression “sexual penetration” is defined
in section 1(1) and has already been quoted and discussed in detail above in the
discussion of rape.109
5 People who may not lawfully marry each other because of a too close
relationship of consanguinity, etc The crime is committed if the sexual
penetration takes places between people who may not lawfully marry each other
on account of consanguinity, affinity or an adoptive relationship.

________________________

109 Supra XI B 5.
 SEXUAL CRIMES 379

(a) Definition in section 12(2)

Section 12(2) reads as follows:
“(2) For the purposes of subsection (1) –
(a) the prohibited degrees of consanguinity (blood relationship) are the following:
(i) ascendants and descendants in the direct line; or
(ii) collaterals, if either of them is related to their common ancestor in the first
degree of descent;
(b) the prohibited degrees of affinity are relations by marriage in the ascending and
descending line; and
(c) an adoptive relationship is the relationship of adoption as provided for in any
other law.”
(b) Consanguinity and affinity: General
According to the common law, when assessing the prohibited degrees of con-
sanguinity or affinity, no distinction is drawn (a) between legitimate and illegit-
imate offspring,110 or between (b) relatives of the full blood and relatives of the
half blood.111 Consanguinity (or blood relationship) exists between all persons
who have a common ancestor. Affinity exists between a husband and the blood
relations of his wife, or between a wife and the blood relations of her husband.
There is no relationship between the blood relations of the one spouse and the
blood relations of the other spouse.
(c) Consanguinity
The word “ascendants” means “ancestors” and “descendants” refers to off-
spring. In the common law the prohibited degrees of consanguinity included
ascendants and descendants in the direct line ad infinitum, and it is reasonable
to assume that the position is the same under the present Act. Examples of such
relationships are father and daughter,112 mother and son113 and grandfather and
granddaughter.
As far as collaterals are concerned, the expression “first degree of descent” in
subsection (2)(a)(ii) means one generation. Examples of collaterals that fall
within the prohibited degrees are brother and sister,114 uncle and niece, but not
two first cousins, because neither of them is related to the common ancestor in
the first degree.
(d) Affinity
The position in our common law regarding relationships of affinity is as fol-
lows: A relationship of affinity can be established by only a legally recognised
marriage and not by a polygamous marriage or the customary union between
blacks.115 The prohibited degrees of affinity are the following:
________________________

110 Piet Arends (1891) 8 SC 176 177.

111 Blaauw 1934 SWA 3 5; Botes 1945 NPD 43; Mulder 1954 1 SA 228 (E).
112 As in D 1972 3 SA 202 (O); M 1999 2 SACR 548 (SCA).
113 As in A 1962 4 SA 679 (E).
114 As in Troskie 1920 AD 466. As to the prohibited degrees of consanguinity generally,
see the discussion in Shasha 1996 2 SACR 73 (Tk) 75.
115 Ncube 1960 2 SA 179 (R) 180; Major 1968 2 PH H186 (R). See also the discussion in
Shasha 1996 2 SACR 73 (Tk) 75.
380 CRIMINAL LAW

Relations by marriage in the ascending and descending line ad infinitum, for

example, a man and his former mother-in-law or daughter-in-law. The termin-
ation by death or divorce of the marriage which has created the relationship of
affinity does not remove the above-mentioned prohibition of intermarriage.116
According to common law a man could not marry those blood relations of his
deceased or divorced wife whom she would have been prohibited from marry-
ing if she had been a man, and the rule applied mutatis mutandis to a widowed
or divorced woman.117 However, section 28 of the Marriage Act 25 of 1961 pro-
vides that a widower may marry his deceased wife’s sister or any female related
to him through his deceased wife in a more remote degree of affinity than her
sister, other than an ancestor or descendant of the deceased wife. The same
applies mutatis mutandis to a widow and the position is the same if the mar-
riage was not dissolved by the death of the one spouse but by divorce.
According to the common law as interpreted by our courts, X commits incest
if he has intercourse with a woman who is not his wife even if she is related to
him by collateral affinity while the marriage creating the affinity still subsists,
as where he has intercourse with his wife’s sister (or the latter’s daughter) while
he is still married to his wife.118 The reason for this view is that the easing of
the prohibited degrees of affinity in the Marriage Act 25 of 1961 applies only if
the marriage is no longer in existence. As long as it exists, the prohibition of
entering into a marriage remains and, therefore, X commits incest if, for exam-
ple, he has intercourse with his wife’s sister while he is still married. As soon as
X is divorced from his wife, intercourse between him and the sister of the wife
he divorced no longer constitutes incest.
It is regrettable that intercourse even in these circumstances is to be regarded
as incest, because such intercourse can be regarded as mere adultery – some-
thing which is not punishable. To this should be added the consideration that
punishing intercourse between affines (people related to each other merely
through marriage) rests on insecure foundations, because such intercourse does
not involve the mixing of blood within one’s own family.119 Judging by the
light sentences imposed by our courts for this type of incest, it is clear that even
the courts do not attach much moral reprehensibility to this type of conduct.120
It is submitted that this type of intercourse should be decriminalised.
(e) Adoptive relationship
The Child Care Act121 prevents an adoptive parent from marrying his adopted
child, and sexual intercourse between them will, therefore, constitute incest.122
________________________

116 Botes 1945 NPD 43 46; Mulder supra 229B–C.

117 K (1875) 5 Buch 98; Paterson 1907 TS 619, and see the discussion in Mulder supra
229A–B and Shasha supra.
118 Van Wyk 1931 TPD 41 44; Botes 1945 NPD 43; Mulder 1954 1 SA 228 (E); Shasha
1996 2 SACR 73 (Tk) 75–77.
119 See the discussion in Hunt-Milton 236, especially par (8), as well as Labuschagne 1985
THRHR 435 447.
120 In Paterson 1907 TS 619, which was a case of intercourse between a man and his wife’s
sister, the “sentence” was imprisonment until the rising of the court, the court finding no
substantial difference between such intercourse and mere adultery.
121 74 of 1983. See s 20(4).
122 M 1968 2 SA 617 (T) 621.
 SEXUAL CRIMES 381

However, as there is no prohibition of marriage between an adoptive child

and the blood-relation of his adoptive parent, intercourse between an adopted
son and, for example, the daughter of his adoptive parent is not incest.
6 Unlawfulness The intercourse must be unlawful, for example, not commit-
ted under duress. Consent by the other party is no defence: where both parties
have consented, both parties are in fact guilty of the crime.123 If the woman has
not consented to intercourse, the crime of rape is committed.
7 Intention Intention is an element of the crime. The parties must not only
intend to have sexual intercourse with each other but they must also be aware
of the fact that they are related to each other within the prohibited degrees of
consanguinity, affinity or adoptive relationship.124

L BESTIALITY
1 Definition Section 13 defines this crime as follows:

“13. A person (“A”) who unlawfully and intentionally commits an act–

(a) which causes penetration to any extent whatsoever by the genital organs
of –
(i) A into or beyond the mouth, genital organs or anus of an animal;
or
(ii) an animal into or beyond the mouth, genital organs or anus of A;
or
(b) of masturbation of an animal, unless such act is committed for scien-
tific reasons or breeding purposes, or of masturbation with an animal,
is guilty of the offence of bestiality.”

2 Elements of crime The elements of the crime are the following: (a) caus-
ing penetration of the genital organs of X into genital organs, etc, of an animal
or vice versa or committing an act of masturbation of an animal; (b) unlawful-
ness and (c) intention.
3 General remarks on crime This crime codifies the common-law crime of
bestiality, which is repealed by section 68(1)(b) of the Act, although some of
the acts described in the definition, such as the masturbation of an animal, did
not form part of the common-law crime. X may be either a male or a female,
and the animal may likewise be either male or female. The crime is committed
not only if X performs the act himself, such as where he inserts his own penis
into the vagina or anus of an animal, but also where he causes another person,
Y, to do so, as where he coerces Y to do so.
4 Constitutionality of crime In M 125 the Free State court held that the exist-
ence of this crime is not unconstitutional. More particularly, the existence of the
crime is, according to the court, not contrary to section 9(3) of the Constitution,
________________________

123 In Botes 1945 NPD 43 both the man and the woman were held to be guilty of incest.
124 Pieterse 1923 EDL 232.
125 2004 1 SACR 228 (O).
382 CRIMINAL LAW

which prohibits discrimination based on sexual orientation, section 12(1),

which states that everyone has the right to freedom and security of the person,
or section 14, which provides that everyone has the right to privacy. The court
emphasised that society regards this type of conduct as unnatural and contrary
to good morals. The decision relies fairly heavily on the community’s perception
regarding this type of crime.126 The latter aspect of the judgment creates a prob-
lem. In dealing with other constitutional issues, such as the question whether
the death sentence is constitutional, community perceptions are not allowed to
cloud the issue by overruling what would otherwise be the meaning of a pro-
vision in the Constitution.
There are arguments favouring the view that the crime’s existence is un-
constitutional. The crime is seldom committed, and almost always out of the
sight of other people. The people who commit the deed are mostly people suffer-
ing from some psychological disability and who are in need of help. This help
cannot take the form of punishment by a criminal court. Inasmuch as there may
possibly be injury to the animal, such causing of injury can be punished by using
the criminal prohibitions dealing with cruelty to animals in the Animal Protec-
tion Act 71 of 1962. The court’s argument that the animal cannot consent to the
deed127 seems unrealistic, especially if one takes into consideration that millions
of animals are slaughtered annually for human consumption, without noticeably
affecting the community’s perceptions relating to what conduct towards animals
is acceptable. The last word on the constitutionality of the crime must still be
spoken by the Constitutional Court.128

________________________

126 See 238c.

127 See 236b–c.
128 Carnelly and Hoctor 2004 Obiter 506 are of the opinion that the judgment in M’s case
is correct, ie, that the criminalisation of bestiality is constitutional because it upholds
human dignity (516). It is difficult to see how punishing X for committing a sexual act
with an animal has anything to do with the dignity of either X or that of society. How
can human dignity be said to be infringed – and that without any justification – if X sat-
isfies his sexual urges against the body of a donkey out of sight of anybody? And is it
X’s dignity which criminalisation must uphold or that of society, although nobody even
saw X performing his act? At 517 the authors further state that “the crime infringes on
the individual’s autonomy” and that “the pursuit of autonomy requires the state . . . to
put in place laws which protect people from the consequences of their own vulnerabil-
ity”. It is difficult to agree with this argument. Inasmuch as the individual’s autonomy
plays any role in the issue, it rather serves the case in favour of decriminalisation rather
than criminalisation. The argument furthermore ascribes a paternalistic role to the state,
enforces morality, and is irreconcilable with the liberal views relating to sexual auton-
omy which does not entail any harm to other people expressed in National Coalition for
Gay and Lesbian Equality v Minister of Justice 1998 2 SACR 556 (CC). More realistic
are the views on M’s case by Grant 2004 Annual Survey 667–668, who is skeptical about
the correctness of the decision. He states (668): “If . . . one considers the criminal pro-
scription of sodomy and the criminal proscription of bestiality one is left wondering how
exactly they differ from a constitutional point of view. If the message of National Co-
alition is that private sexual conduct which causes no harm to others and which may or
may not be viewed as repugnant by a segment of society, cannot, without another justi-
fication, simply be proscribed, then it is difficult to see how bestiality can legitimately be
proscribed while sodomy may not . . . I struggle to see . . . this point of distinction . . .”
 SEXUAL CRIMES 383

M SEXUAL ACT WITH A CORPSE

1 Definition Section 14 defines this crime as follows:

“A person who unlawfully and intentionally commits a sexual act with a

human corpse is guilty of the offence of committing a sexual act with a
corpse”.

2 Discussion of crime The definition is largely self-explanatory and hardly

needs any elucidation. The expression “sexual act” is defined in section 1(1) as
“an act of sexual penetration or an act of sexual violation”. The expressions
“sexual penetration” and “sexual violation” have already been quoted and dis-
cussed above.129
Because of the wide definition of inter alia “sexual violation”,130 even kissing
a corpse on the mouth would seem to fall within the definition of the crime – a
surprising state of affairs. Must one assume that the loved ones of a person who
has just died, who had cared for him or her for a long time and just give the
recently deceased person a last kiss as an expression of love and piety, render
themselves guilty of committing this crime? Shakespeare’s Juliet kissed her
beloved Romeo for the last time on his mouth after he had died. Will a modern
Juliet who does the same thing commit a crime?131 It is submitted that the legis-
lature could never have intended such an extraordinary result and that such cases
ought not to be punishable. They ought to be treated as situations in which the
defence of de minimis non curat lex applies.132

N SEXUAL OFFENCES AGAINST CHILDREN

1 General Chapter 3 of the Act, comprising sections 15 to 22, deals with
sexual offences against children. Perhaps the most important of these crimes is
the first one, namely intercourse with children below the age of 16 years, even
with their consent. Some of the further crimes are defined in great detail, but
they will be discussed in outline only.
2 Consensual sexual penetration of children
(a) Definition Section 15(1) defines this crime as follows:

“15. (1) A person (“A”) who commits an act of sexual penetration with a
child (“B”) is, despite the consent of B to the commission of such an act,
guilty of the offence of having committed an act of consensual sexual pene-
tration with a child.”
________________________

129 Supra XI B 5; XI D 5.
130 See par (a)(ii)(bb) of the definition of “sexual violation” in s 1(1).
131 Shakespeare Romeo and Juliet V 3. The temptation is great to mention some further
examples. See Genesis 50:1, which contains a description of Joseph kissing his late
father Jacob just after the latter has died; Shakespeare’s Titus Andronicus V 3, shortly
before the end of this act, as well as Shakespeare’s Julius Caesar III 2, where, immedi-
ately after Caesar’s death, Antony cries out: “And they would go and kiss dead Caesar’s
wounds”.
132 On this defence, see supra IV J.
384 CRIMINAL LAW

The word “child” in the definition is defined in section 1(1) as “a person 12

years or older but under the age of 16 years”.
(b) Elements of crime The elements of this crime are the following: (a) the
commission of an act of sexual penetration; (b) with a person between the ages
of 12 and 16 years of age (c) unlawfulness and (d) intention.
(c) General remarks on this crime This is a very important crime, which is
usually referred to as “statutory rape”. The expression “statutory rape” is in fact
expressly used in brackets as a description of this crime in the heading used in
the Act to describe the crime created in section 15. If X commits an act of sexual
penetration with a child below the age or 12, he or she will be guilty of rape,
because any ostensible “consent” by such a young child is regarded by the law
as invalid.133 Sexual penetration of a child between the ages of 12 and 16 is
criminalised, because such a child is not yet mature enough properly to appre-
ciate the implications and consequences of sexual acts, especially sexual pene-
tration of a female by a male. They should, therefore, be specially protected.
Consent by the child to the commission of the act is no defence. If the act takes
place without any consent by the child, X commits the more serious crime of
rape.
(d) Statutory rape in the old legislation This type of conduct was punishable
also before the present Act came into operation. It was criminalised in terms of
section 14 of the Sexual Offences Act 23 of 1957. The present Act repeals and
replaces the old section 14.
(e) Child between the ages of 12 and 16 years The child in respect of whom
the sexual penetration is performed (Y) must be between the ages of 12 and 16
years of age at the time of the commission of the act.
(f) When both X and Y are children at the time of the act This situation
causes certain problems. The definition of the crime in subsection (1) does not
require X to be above a certain age. However, subsection (2) provides that if X
is also a child, that is, “a person 12 years or older but under the age of 16
years”, as the word “child” is defined in section 1(1), the institution of a pros-
ecution must be authorised in writing by the national director of public prosecu-
tions, and that both X and Y must then be prosecuted.
The criminalisation of intercourse between two consenting children between
12 and 16 years has been criticised on the grounds that it is not abnormal for
adolescents in this age group to experiment with sex and that such conduct is
developmentally significant and normative. To punish adolescents for such
conduct is not only detrimental to the development of a proper understanding of
and healthy attitude to sexual behaviour, but also incompatible with a number
or rights enshrined in the Constitution, such as the childrens’ rights to dignity,
privacy and bodily and psychological integrity, as well as the constitutionally
recognised principle that a child’s interests are of paramount importance in
every matter concerning this child.134 In Teddy Bear Clinic for Abused Children
v Minister of Justice and Constitutional Development 135 the Constitutional
________________________

133 See the discussion supra XI B 6 (b) (iv).

134 S 28(2) of the Constitution.
135 CCT 12/13 [2013] ZACC 35 (not yet reported at the time of writing).
 SEXUAL CRIMES 385

Court agreed with this criticism and declared section 15 invalid to the extent
that it imposes criminal liability on children under the age of 16 years. The
court expressly stated that its order is not applicable to cases where X is 16 or
17 years of age. The court gave parliament 18 months to correct the defects in
the section. At the time of the writing of this edition parliament has not yet
amended the section, but it is reasonable to assume that it will be amended to
accord with the decision of the Constitutional Court.
(g) Commission of an act of sexual penetration The conduct punishable
under the section presently under discussion is “sexual penetration”. The ex-
pression “sexual penetration” is defined in section 1(1) and has already been
quoted and discussed in detail in the discussion of the corresponding element in
the crime of rape.136 It is sufficient to note once again that the perpetrator (X)
may be either a male or a female and that the child in respect of whom the
penetration is committed (Y) may likewise be either a male or a female. The act
includes penetration of the child’s vagina, anus or mouth. The penetration may
also be performed with another part of the body such as a finger or a toe, and
even with an object, such as a sex toy, a stick, or the genital organs of an animal
or another part of the body of an animal.
(h) Two special defences Tucked away near the end of the Act is an import-
ant provision in section 56 setting out two defences which X may rely on when
charged with this crime.
• First defence: Y deceived X about his or her age
According to section 56(2)(a) it is a valid defence for somebody charged
with this crime to contend that the child (Y) deceived X into believing that
he or she was 16 years or older at the time of the alleged commission of the
crime, and that X reasonably believed that Y was 16 years or older. How-
ever, this provision does not apply if X is related to Y within the prohibited
degrees of blood, affinity or an adoptive relationship as set out in the defin-
ition of incest.137 It is submitted that the prosecution bears the onus of
proving that X was not deceived into believing that Y was 16 years or older,
but that there is an evidential onus on X to raise the defence and lay a fac-
tual foundation for the existence of the belief.
For this defence to succeed, both a subjective and an objective test applies.
Firstly, the test is subjective in the sense that X must have believed that the
young person was already at least 16 years of age. Secondly, as a result of
the use of the word “reasonably” in section 56(2)(a), the test is objective in
the sense that the reasonable person in the circumstances would also have
had the belief that X was already at least 16 years of age. If X merely looked
at Y and decided that he or she was already 16 years of age, there are not yet
enough grounds for the defence to succeed. Y should have behaved in such
a way that it could be construed as a deception of X. The section provides
that Y should have deceived X into believing that he or she (Y) was already

________________________

136 Supra XI B 5.
137 S 56(3). For the meaning of the words “prohibited incest degrees of blood, affinity or an
adoptive relationship”, see the discussion of incest supra XI K 5.
386 CRIMINAL LAW

16 years old. A further discussion of the interpretation to the word “deceive”

just given appears below in the discussion of the intention requirement of
this crime.138
• Second defence: X and Y both children
According to section 56(2)(b) it is a valid defence for somebody charged
with this crime to contend that both X and Y139 were “children” (ie, persons
between the ages of 12 and 16 years)140 and the age difference between
them was not more than 2 years at the time of the alleged commission of the
crime. Thus, if X was 15 years old at the time of the act, he or she will have
a valid defence if Y was 13 years old at that time, but not if Y was 12 years
old at that time. It is common knowledge that sex between children under the
age of 16 often occurs. Before both children under the age of 16 are charged
with the commission of the crime, the director of public prosecutions must
consent in writing to the prosecution.141 The decision of the Constitutional
Court in the Teddy Bear Clinic case142 discussed above will lead to some
form of amendment of this subsection in order to make it harmonise with an
amended section 15.
(i) Unlawfulness The act must be unlawful. Compulsion may conceivably
exclude the unlawfulness. The unlawfulness can furthermore be excluded by
official capacity, as where a medical doctor who examines the child places his
or her finger into the child’s vagina, anus or mouth.
( j) Intention The requirement of intention is not specifically mentioned as
an element of the crime. It is, in fact, very noticeable that whereas intention is
specifically mentioned as a requirement for a conviction in most of the crimes
created in the Act, it is not mentioned as a requirement for a conviction of the
present crime. It often happens that X bona fide believes female Y to be at least
16 years of age, whereas she is in fact just below the age of 16 at the time of the
commission of the act. Y may, for example, be particularly large and physically
well developed for her age. The question whether X can rely on a mistake
relating to Y’s age is complicated by the creation in section 56 of the first
special defence on which X may rely. This defence, as indicated above, amounts
to Y having deceived X into believing that he or she was 16 years or older at
the time of the alleged commission of the crime, coupled with the fact that X
reasonably believed that Y was already 16.
It is submitted that, although intention is not specifically mentioned in the
definition as an element of the crime, it is nevertheless impliedly required in the
words “and the accused person reasonably believed that the child was 16 years
or older” in section 56(2)(a). The inclusion of the word “reasonably” is to be

________________________

138 Infra XI N 2 (j).

139 The wording of s 56(2)(b) actually reads: “. . . a valid defence . . . that both the accused
persons were children . . .” It must be remembered that s 15, which creates this crime,
provides in subs 2(a) that if both X and Y are children, ie between 12 and 16 years, both
must be charged with contravening s 15.
140 See the definition of “child” in s 1(1).
141 S 15(2)(a).
142 CCT 12/13 [2013] ZACC 35. See supra under the discussion in XI N 2 (f).
 SEXUAL CRIMES 387

regretted, because in terms of the general principles applying to intention and

more particularly X’s knowledge, a mistaken belief excludes intention even if
such a belief is unreasonable.143 The use of the word “reasonable” brings an
objective element into an inquiry which is usually purely subjective.
Furthermore, much depends upon how the courts will interpret the word
“deceive” as it appears in the wording of the first special defence in section
56(2)(a). A wide interpretation of this word is preferable, because such an
interpretation will enable the courts to reach a conclusion largely compatible
with the general principles applying to intention, and more particularly of X’s
knowledge. By a wide interpretation is meant an interpretation which does not
limit the word “deception” to active, express deception, but which includes
implied deception, that is, deception by conduct.144 It is also submitted that
“deceive” ought to be interpreted in such a way that Y need not necessarily
consciously or intentionally have deceived X.
3 Consensual sexual violation of children
(a) Definition Section 16(1) defines this crime as follows:

“16. (1) A person (“A”) who commits an act of sexual violation with a
child (“B”) is, despite the consent of B to the commission of such an act,
guilty of the offence of having committed an act of consensual sexual vio-
lation with a child.”

The word “child” in the definition is defined in section 1(1) as “a person 12

years or older but under the age of 16 years”.
(b) Elements of crime The elements of this crime are the following: (a) the
commission of an act of sexual violation; (b) with a person between the ages of
12 and 16 years of age; (c) unlawfulness and (d ) intention.
(c) General remarks on this crime The only difference between this crime
and that of consensual sexual penetration of children in contravention of section
15 discussed immediately above, is that, whereas the latter crime relates to situ-
ations where a child between the ages of 12 and 16 years was sexually pene-
trated, in the present crime such a child is not sexually penetrated but only
sexually violated. The difference between acts amounting to sexual penetration
and those amounting sexual violation has already been set out above145 in detail
and it is unnecessary to repeat it here.
Everything that was said above in the discussion of consensual sexual pene-
tration of a child in contravention of section 15, applies also to the present crime,
with the sole exception that the conduct criminalised does not consist of sexual
penetration but of sexual violation. The two special defences created in section
56, and which have already been quoted and discussed, apply also to this crime.
The same remarks apply to the elements of unlawfulness and intention, as well
________________________

143 Supra V C 15.

144 For a similar opinion, see Milton and Cowling E3–6. The judgments in T 1960 4 SA
685 (T) and M 1997 2 SACR 340 (O) seem to support a wide interpretation of “mis-
lead”, and more particularly an implied deception.
145 Supra XI B 5; XI D 5.
388 CRIMINAL LAW

as to the consent of the director of public prosecutions which must be obtained

if X is also below the age of 16 years of age. As in the other crime, X may be
either male or female and the same applies to Y.
As already pointed out above,146 the definition of “sexual violence” in the
Act is so wide that it may even include X’s touching Y’s mouth with his (X’s)
own mouth, in other words, X’s kissing of Y. This amounts to an unjustifiable
overreach of the prohibition. In Teddy Bear Clinic for Abused Children v
Minister of Justice and Constitutional Development147 the Constitutional Court
declared section 16 invalid to the extent that it imposes criminal liability on
children under the age of 16 years. The court gave parliament 18 months to cor-
rect the defects in the section. The reason for this decision has already been set
out above. At the time of the writing of this edition parliament has not yet
amended the section, but it is reasonable to assume that it will be amended to
accord with the decision of the Constitutional Court.
4 Sexual exploitation of children
(a) General Section 17 creates a number of crimes relating to the sexual
exploitation of children. These crimes are defined in great detail. What follows
is only a summary of the section’s provisions. In the discussion of the section
that follows it should be borne in mind throughout that the word “child”, as
used in the section, means a person under the age of 18 years.148
(b) Sexual exploitation of child Subsection (1) of section 17 creates a crime
which is worded substantially the same as the crime created in s 11 which cre-
ates the crime of prostitution. This latter section has already been quoted and
discussed in detail above.149 There are only two differences between the word-
ings of these two sections. The first is that, whereas section 11 refers to “a per-
son 18 years or older”, section 17(1) refers to “a child complainant”. The second
point of difference is that the words “with or without the consent of B” appear
in section 17(1), whereas they do not appear in section 11. In essence section
17(1) provides that any person who engages the services of a child for sexual
favours, for any type of reward, irrespective of whether the sexual act is com-
mitted or not, is guilty of the crime of sexual exploitation of a child. The words
“with or without the consent of B” means that male person X commits the
crime if he obtains the services of Y for sex for reward, even if Y is a consent-
ing 17-year-old girl.
(c) Involvement in the sexual exploitation of a child Subsection (2) provides
that a person (X) who offers the services of a child complainant (Y) to a third
party (Z), with or without the consent of Y, for financial or other reward, for
purposes of the commission of a sexual act with Y by Z, or by detaining Y by
threats for purposes of the commission of a sexual act, is guilty of the crime of
being involved in the sexual exploitation of a child.
(d ) Furthering the sexual exploitation of child According to subsection (3),
any person who allows or permits the commission of a sexual act by Z with a
________________________

146 Supra XI D 5 (v).

147 CCT 12/13 [2013] ZACC 35, not yet reported at the time of the writing of this edition.
148 See the definition of “child” in s 1(1).
149 Supra XI J.
 SEXUAL CRIMES 389

child Y, with or without the consent of Y, or permits property which he or she

(X) owns to be used for the commission of a sexual act with a child Y, is guilty
of furthering the sexual exploitation of a child.
(e) Benefiting from sexual exploitation of child Subsection (4) provides that
a person, who intentionally receives financial or other reward from the commis-
sion of a sexual act with a child complainant by a third party, is guilty of bene-
fiting from the sexual exploitation of a child.
( f ) Living from the earnings of sexual exploitation of child According to
subsection (5), a person who intentionally lives wholly or in part on rewards or
compensation for the commission of a sexual act with a child (Y) by the third
person (Z), is guilty of living from the earnings of the sexual exploitation of a
child.
(g) Promoting child sex tours According to subsection (6) a person who
organises any travel arrangements for a third person (Z) with the intention of
facilitating the commission of any sexual act with a child (Y) or who prints or
publishes information intended to promote such conduct, is guilty of promoting
child sex tours.
5 Sexual grooming of children
(a) Conduct criminalised Under the heading of “sexual grooming of chil-
dren”, section 18 criminalises a long list of acts which all amount to requesting,
influencing, inviting, persuading, encouraging or enticing a child (Y) – that is, a
person under the age of 18 years150 – to indulge in a sexual act or to diminish-
ing his or her resistance to the performance of such acts. Examples of such acts
are the following: to display an article intended to be used in the performance
of a sexual act to Y; to display pornography to Y; to describe the commission of
any act to Y with the intention to reduce his unwillingness to perform a sexual
act; to persuade Y to travel to any part of the world in order to commit a sexual
act there; and to discuss or explain with Y the commission of a sexual act.
6 Displaying pornography to children
(a) Conduct criminalised Under the heading “Exposure or display of or
causing exposure or display of pornography to children”, section 19 prohibits a
person from unlawfully and intentionally exposing or displaying child porn-
ography151 to persons younger than eighteen years. It also criminalises the
exposure of films or publications to children that, in terms of the Films and
Publications Act 65 of 1996, have been given certain specific classifications
because of the explicit sexual nature of the films. The section also prohibits a
person from exposing children to publications which are not suitable to them
because of the sexual content of the publications.
7 Using children for, or benefiting from, child pornography
(a) Conduct criminalised Section 20 creates the crime of using a child – that
is, a person below the age of eighteen years152 – for child pornography, or
________________________

150 See the definition of “child” in s 1(1).

151 What constitutes child pornography is to be found in s 20(1)(a) and (b). See the discussion
of the crime created in s 20 infra XI N 7.
152 See the definition of “child” in s 1(1).
390 CRIMINAL LAW

benefiting from such conduct. The section targets different role-players who are
actively involved in obtaining children and using them in order to create child
pornography.
Subsection (1) inter alia prohibits a person from engaging a child (Y) for the
purpose of making child pornography. It matters not whether Y consents to the
act or not, or whether Y receives financial or other reward for his or her pro-
posed conduct, or whether anybody else receives such reward. The subsection
also criminalises the actual making of the child pornography. Among the acts
listed as instances of child pornography are (a) an act depicting Y engaged in an
act that constitutes a sexual offence; (b) an act of sexual penetration or sexual
violation; (c) an act of self-masturbation; and (d) sexually suggestive or lewd
acts.
Subsection (2) is aimed at punishing all role-players who benefit in any man-
ner from their involvement in child pornography.
8 Compelling children to witness sexual crimes, sexual acts or self-
masturbation
(a) Conduct criminalised Section 21 criminalises conduct whereby X un-
lawfully and intentionally causes or compels a child, Y, to witness the commis-
sion of a sexual offence as defined in section 1(1), a sexual act as defined in the
same subsection or an act of self-masturbation. It does not matter for whose
sexual gratification X performs the act.
9 Failure to report sexual offence against children
(a) Conduct criminalised Section 54(1) provides that a person who has
knowledge that a sexual offence has been committed against a child, must report
such knowledge immediately to a police official. Section 54 (2) provides that a
person who fails to report such knowledge is guilty of an offence. This provision
is of special importance to people in certain professions, such as police officials,
social workers and even medical doctors.

O SEXUAL OFFENCES AGAINST

MENTALLY DISABLED PERSONS
1 General Mentally disabled persons constitute a group of persons who are
particularly vulnerable to sexual exploitation. Because of their mental disability,
they do not understand the nature, character or consequences of sexual acts
committed in respect of them, and as a rule do not report their sexual exploit-
ation to other people or the authorities. They are in the hands of others who care
for them and who sometimes find themselves in situations in which it is easy to
exploit their mental disability by committing sexual acts in respect of them.
Consequently mentally disabled people need particular protection by the law.
Chapter 4 of the Act, comprising section 23 to 26, deals with sexual offences
against persons who are mentally disabled. The expression “person who is
mentally disabled” occurs repeatedly in chapter 4 of the Act. It is defined as
follows in section 1(1):
“ ‘person who is mentally disabled’ means a person affected by any mental disability,
including any disorder or disability of the mind, to the extent that he or she, at the time
of the alleged commission of the offence in question, was –
 SEXUAL CRIMES 391

(a) unable to appreciate the nature and reasonably foreseeable consequences of a

sexual act;
(b) able to appreciate the nature and reasonably foreseeable consequences of such an
act, but unable to act in accordance with that appreciation;
(c) unable to resist the commission of any such act; or
(d) unable to communicate his or her unwillingness to participate in any such act.”
The wording of paragraphs (a) to (c) of the definition are reminiscent of the
basic requirements for criminal capacity and linked thereto, the requirements
for a successful reliance on the defence of mental illness set out in section 78(1)
of the Criminal Procedure Act 51 of 1977.153
The provisions of chapter 4 are long and complicated. They merely mirror
the corresponding provisions in section 17 to 20 of the Act, which deal with the
sexual exploitation and grooming of children and measures to protect children
against acts of a sexual nature. A full exposition and discussion of these pro-
visions (ie, sections 23–26) fall outside the scope of this book. What follows is
a summary of its main provisions.
2 Sexual exploitation of mentally disabled persons Section 23 deals with
the sexual exploitation of mentally disabled persons. The section largely re-
sembles the corresponding provisions relating to the sexual exploitation of chil-
dren set out in section 17 and already summarised above.154 Thus, X commits a
crime if he or she engages the services of a mentally disabled person Y so that
he or she (X) may commit a sexual act with Y. X also commits a crime if he or
she offers the services of Y to a third party, Z, for financial or other reward so
that Z may commit a sexual act with Y.
Subsection (3) provides that X commits a crime if he or she intentionally
allows the commission of a sexual act by Z with Y, while X is a care-giver
parent, guardian, curator or teacher of X. The word “care-giver” is further de-
fined in subsection 1(1) an “any person who, in relation to a person who is
mentally disabled, takes responsibility for meeting the daily needs of or is in
substantial contact with such person”.
Further subsections prohibit X from benefiting from the sexual exploitation
of Y, from living from the earnings of the sexual exploitation of Y, or from pro-
moting sex tours for Y.
3 Sexual grooming of mentally disabled persons Section 24 criminalises
the sexual grooming of mentally disabled persons. The section mirrors the
corresponding provisions of section 18, which deals with the sexual grooming of
children, and which have already been summarised above.155 The section crim-
inalises a long list of acts which all amount to requesting, influencing, inviting,
persuading, encouraging or enticing a mentally disabled person (Y) to indulge in
a sexual act or to diminish his or her resistance to such acts. Examples of such
acts are the following: to display an article intended to be used in the perform-
ance of a sexual act to Y; to display pornography to Y; to describe the commis-
sion of any act to Y with the intention to reduce his unwillingness to perform a
________________________

153 Supra V B (iii) 2.

154 Supra XI N 4.
155 Supra XI N 5.
392 CRIMINAL LAW

sexual act; to persuade Y to travel to any part of the world in order to commit
a sexual act there; and to discuss or explain with Y the commission of a sexual
act.
4 Exposure or display of pornography or harmful material to mentally dis-
abled persons Section 25 criminalises the exposure or display, or the causing
of such exposure or display, of pornography or harmful material to mentally
disabled persons. The section mirrors the corresponding provisions of section
19, which deals with the exposure or display of pornography to children. This
latter section has already been summarised above.156 Instead of the word “chil-
dren” as used in section 19, the expression “persons who are mentally disabled”
is used in section 25.
5 Using mentally disabled people for pornographic purposes Section 26
criminalises the use of mentally disable people for the purpose of creating or
producing any image or publication which, for example, displays the mentally
disabled person engaged in the commission of a sexual offence, sexual pene-
tration, sexual violence, self-masturbation or sexually suggestive or lewd acts.
6 Failure to report sexual offence against mentally disabled person Sec-
tion 54(2)(a) provides that a person who has knowledge that a sexual offence
has been committed against a person who is mentally disabled, must report
such knowledge immediately to a police official. Subsection 2(b) provides that
a person who fails to report such knowledge is guilty of an offence.

________________________

156 Supra XI N 6.
 CHAPTER
XII

CRIMES AGAINST THE FAMILY

A BIGAMY
1 Definition Bigamy is committed if a person who is already married is
unlawfully and intentionally a party to a marriage ceremony purporting to
bring about a lawful marriage between himself (or herself) and somebody
else.1

2 Elements of crime The elements of the crime are the following: (a) pro-
fessing to be a party to a marriage ceremony which brings about a lawful mar-
riage; (b) the perpetrator must be married; (c) unlawfulness; and (d) intention.
3 Rationale Nowadays the most important rationale for punishing bigamy is
the fact that it is an abuse of the legal institution of marriage.2 The crime may
be committed by either a male or a female.
4 Subsistence of valid marriage The crime can be committed only if X is, at
the time of the second “marriage”, already lawfully married and if his marriage is
still in subsistence.3 A valid marriage will obviously not be in subsistence at the
time of the “second marriage” if the first marriage has been dissolved by divorce
or by the death of the other spouse before the “second marriage” is entered into.
Neither will there at that stage be a valid marriage if the first marriage was void
ab initio (eg because the parties were related to each other within the prohibited
degrees of consanguinity). A valid marriage will, however, be in subsistence if
________________________

1 One is tempted to define the crime simply as “the unlawful, intentional entering into a mar-
riage by a person who is already married”. On closer scrutiny such a definition appears to
be unacceptable, because of the rule of the law of husband and wife that someone who is
already married and whose marriage is still in subsistence cannot validly enter into another
marriage. The second (bigamous) marriage is void. Thus, viewed correctly, bigamy does
not consist in entering into a second marriage (because this is impossible), but in being a
party to a marriage ceremony which purports to bring about an otherwise lawful marriage.
2 Moorman 2 14 1–3; Nkabi 1918 SR 160 167. Another rationale is the injury done to X’s
spouse, or even the injury done to the person whom X purports to marry, in cases where
that person is unaware that X is in fact already married. It is therefore a crime both against
the community and against an individual.
3 S 237 of the Criminal Procedure Act 51 of 1977; McIntyre supra 808, 821.

393
394 CRIMINAL LAW

the first marriage was merely avoidable, because such a marriage is regarded as
valid until it is annulled.
5 Second marriage ceremony The crime is committed the moment X pur-
ports to enter into a second marriage by going through the necessary marriage
ceremony.4 The ceremony must comply with the formal requirements for a mar-
riage ceremony. The crime is not committed if the second purported marriage is
“solemnised” by a person who is not an authorised marriage officer in terms of
the law.5
This “second marriage” is, of course, void, but it is not clear whether it is an
essential of the crime that this “second marriage” would otherwise have been a
valid marriage (that is, if it were not already void because of its bigamous
nature). Assume, for example, that the parties to the “second marriage” may not
marry each other because they are related within the prohibited degrees of con-
sanguinity. Here one is not dealing with a formal defect in the marriage cere-
mony, but with a material incompetence of the two parties to marry each other. In
English law the latter type of incompetence is no bar to a conviction of bigamy,6
and it is submitted that the position in South Africa is the same.7
If the party with whom X is purporting to enter into a “second marriage” is
aware that X is already married, he or she is an accomplice (if he or she is un-
married) or a co-perpetrator (if he or she is also already married).
6 Customary marriages and civil marriages Section 2(1) of the Recog-
nition of Customary Marriages Act 120 of 1998 provides that a valid customary
marriage (that is, a marriage according to customary law) is for all purposes
recognised as a marriage. From this provision it would seem to follow that X
commits bigamy if, being married according to customary law, he enters into a
civil marriage, and conversely, if being married according to civil law, he enters
into a customary marriage. This conclusion is strengthened by the provisions of
section 3(2) of the Act, which provide that no spouse in a customary marriage
is competent to enter into a civil marriage during the subsistence of such a cus-
tomary marriage. It is likewise strengthened by the provisions of section 10(4)
of the same Act, which provide that no spouse of a civil marriage is, during the
subsistence of such marriage, competent to enter into any other marriage. It is
clear that the intention of the legislature is that all civil marriages should remain
monogamous.8
________________________

4 Nkabi 1918 SR 160 162.

5 Jacobs 1926 OPD 184 186. It is submitted that X is in such a case guilty of attempted
bigamy.
6 Brawn (1843) 1 Carr and Kir 144; Allen (1872) LR 1 CC 367; Robinson [1938] 1 All ER
301; Archbold 31–8.
7 This is also the opinion of Hunt-Milton 266–267; De Wet and Swanepoel 279; Burchell
and Milton 771.
8 The conclusion in the text is likewise strengthened by the provisions of s 10(1), which
provides that a man and a woman between whom a customary marriage subsists are com-
petent to contract a civil marriage with each other, provided neither of them is a spouse in
a subsisting customary marriage with any other person. Apart from this, not to regard such
“mixed system marriages” as bigamy would be to discriminate against people who enter
into a second civil marriage while already being married according to civil law – conduct
which is punishable as bigamy. Such discrimination would be difficult to justify in the
light of the provisions of the Act referred to above.
 CRIMES AGAINST THE FAMILY 395

7 Unlawfulness There must be no justification for X’s conduct. The un-

lawfulness may conceivably be excluded by coercion (necessity).
8 Intention The crime can be committed intentionally only.9 X must be
aware, at the time of the second purported marriage, that he is still married.
More particularly, he must not be under the impression that his marriage has
been dissolved by the death of his spouse or by divorce.10

B COMMON-LAW ABDUCTION

1 Definition A person, either male or female, commits abduction if he or

she unlawfully and intentionally removes an unmarried person below the
age of 18 years, who may likewise be either male or female, from the con-
trol of his or her parents or guardian and without the consent of such parents
or guardian, intending that he or she or somebody else may marry or have
sexual intercourse with the minor.11

2 Elements of crime The elements of the crime are the following: (a) the
removal (b) of an unmarried person below the age of 18 years (c) from the con-
trol of his or her parents or guardian (d) with the intention of marrying or
having sexual intercourse with the minor (e) without the consent of the parents
or guardian ( f ) unlawfulness and (g) intention.
3 Person below the age of 18 years The person in respect of whom the crime
is committed must be an unmarried minor.12 Before 2005, it was beyond dispute
that, in terms of the common law, “minor” meant a person below the age of 21
years. However, section 17 of the Children’s Act 38 of 2005 now provides that
a male of female child reaches the age of majority when they are 18 years of
age. It is submitted that section 17 of this Act also has an effect on the definition
of this crime in that the term “minor”, as used in the former accepted definition,
now means somebody below the age of 18 years.
4 Origin and character In Roman-Dutch law the crime was known as raptus
or schaking.13 The crime dates from a period in history when minor women
played a very subservient role in society, and were to a large extent subjected to
the authority of their parents or guardians. They enjoyed little freedom of
movement, and were often regarded by their parents as economic assets. The
purpose of the crime was to prevent strangers from removing minor girls from
the parents’ control, thereby depriving the parents of their rights – economic or
________________________

9 Van der Linden 2 7 3 (“voorbedachtelijk”); Van der Keessel 48 5 6. Intention was assumed
to be a requirement in Lees 1927 EDL 314 318, 322.
10 Lees supra.
11 Nel 1923 EDL 82 83; Kahn 1928 CPD 328 332; Hlapo 1944 OPD 166 168; Churchill
1959 2 SA 575 (A) 578, 580; Sita 1954 4 SA 20 (E) 22. The reason for the insertion of
the words “person below the age of 18 years” instead of “minor” is to be found in the
provisions of s 17 of the Children’s Act 38 of 2005, discussed below in par 3.
12 Voet 48 6 6; Jorgenson 1935 EDL 219 223.
13 C 9 13; Voet 48 6 4–6; Matthaeus 48 4 2; Moorman 2 17; Van der Keessel 48 6 7; Van
der Linden 2 7 4; Van Leeuwen RHR 4 36 4.
396 CRIMINAL LAW

otherwise – in respect of the girl. The crime protected especially the parents’
right to give consent to the girl’s marriage. The crime’s field of application was
later extended also to protect the parents’ rights in respect of minor boys.
In modern society minor girls and boys are, of course, more independent of
parental authority. Today the crime still protects the parents’ right to consent to
the minor’s marriage and to exercise control over where she stays. Since mere
seduction is not to be equated with abduction, the crime does not necessarily
protect the parents’ control over the minor’s sex life; the boyfriend who takes
away a minor girl from her parental home, where she is staying, with her con-
sent, has intercourse with her with her consent and shortly thereafter returns her
to her parental home, does not commit the crime. The crime therefore serves
only a limited purpose nowadays.14 Nevertheless the crime is not completely
without foundation even today: it punishes at least unscrupulous people who
entice young people away from their parental homes in order to place them at
the disposal of others for sexual purposes (often at a price and with the consent
of the young person).
5 Legal interest protected The crime represents a wrong committed against
the parents or guardian of the minor, and not against the minor, because the
latter’s consent to the acts of the wrongdoer is no defence.15 The interests pro-
tected here are twofold, namely the factual exercise of control over the minor,
and the parents’ or guardian’s right to consent to the minor’s marriage. These
correspond to what are probably the two most important requirements for the
crime, namely (a) that there must be a physical removal of the minor from the
control of the parents, and (b) that the removal must be without the consent of
the person or persons whose consent to the minor’s marriage is necessary. If the
minor does not consent to the taking X may, apart from abduction, also be guilty
of kidnapping or, if he has sexual intercourse with her without her consent, rape.
6 The perpetrator and the minor Both the person who commits the crime
and the person in respect of whom the crime is committed may be either male
or female.16 In the vast majority of reported cases on the crime the perpetrator
(X) was a male and the minor (Y) a female. For this reason the perpetrator (X)
will, in the discussion which follows, be referred to in the masculine form and
the minor (Y) in the feminine form.
7 The removal The act consists in removing the minor from the control of
his or her parents or guardian. Whether the minor is physically removed by force
or, after a request by the wrongdoer, decides to accompany him voluntarily is

________________________

14 See the discussion in Hunt-Milton 555.

15 Hanna 1937 TPD 236 239; Bezuidenhout 1971 4 SA 32 (T) 35C–D.
16 Voet 48 6 4; Moorman 2 17 3; Van der Keessel 48 6 7. There seems to be no reason why
the crime cannot be committed by a male in respect of a male where a minor boy is taken
away for the purpose of homosexual practices. Such a case is explicitly mentioned by
Van der Keessel 48 6 7 as abduction. The minor must be under the control of somebody
else (Tobie (1899) 16 CLJ 45 (O) 48; Hlapo supra 168); the crime would therefore not be
committed if a father removed his own daughter for the purpose of intercourse. For a case
where abduction was committed by a female, see Adams 1911 CPD 863 867–868.
 CRIMES AGAINST THE FAMILY 397

immaterial.17 (In practice the minor is almost invariably a willing party.) X

need not necessarily accompany the minor when she leaves her home: it is suf-
ficient if she leaves her home herself after arranging with X to meet him some-
where.18 The removal may also take place constructively, if the minor, who is
already away from home, is persuaded not to return.19
8 The removal must be from the parents’ or guardian’s control Y must
be removed from her parents’ or guardian’s control. The control of the parents
or guardian over the minor is not limited to the time when she is in her parents’
home. The minor remains under the parents’ control even if she goes to visit a
friend, or goes on holiday with somebody else, or stays at another place such as
a boarding school or with relatives. In the latter case the parents exercise their
control through the head of the boarding school or the relative concerned, who
are persons in loco parentis.
There may be cases, however, where the parent or guardian has completely
relinquished control over the minor, as where the minor has left the parental
home and the parents neither know, nor are even concerned about, the minor’s
whereabouts.20 In such cases the minor cannot be abducted, since there is no
parental or guardian’s control which is infringed.21 Nor can abduction be
committed if the minor has left home of her own accord, and X’s conduct
towards her does not amount to any active assistance or encouragement to her
to escape from her parents’ control.22
9 Purpose of removal must be to marry or have intercourse with minor
The crime is committed only if the removal takes place with a certain purpose.
This purpose is that somebody (usually X himself) either marries Y or has sexual
intercourse with her.23 For the crime to be completed, proof of actual marriage
or intercourse between the parties is not required. Mere proof of intention to
achieve one of these aims is required.
However, the mere temporary removal of a girl from her home in order to
facilitate sexual intercourse is not abduction. X must intend to remove Y either
permanently or at least for a substantial period. If X wishes to have intercourse
with Y, but it is impractical for him to do this at Y’s home, the couple then drive
away to some other place in order to have sexual intercourse, and immediately
or shortly after intercourse has taken place X returns Y to her home, he does
not commit abduction. Such conduct may amount to seduction, but mere seduc-
tion is not the same as abduction.24 (Seduction is, in fact, not a crime at all.) In
________________________

17 Feelander 1926 TPD 157 161; Ismail 1943 CPD 418 420.
18 As in Nel 1923 EDL 82 83; Jorgenson supra 220, 223.
19 This happened in Killian 1977 2 SA 31 (C) 32. In this case X and the minor had been in
each other’s company since the afternoon but, as the minor had her parents’ consent to be
absent during the day, it was held (35A–B, 37A–B) that the removal took place at about
23h00 only, when the minor ought to have returned home, but was persuaded by X to
spend the night with him. At that stage they were already at his home.
20 As in Bezuidenhout 1971 4 SA 32 (T) 34.
21 Jorgenson supra 223; Bezuidenhout supra 35.
22 As in Pearston 1940 OPD 153; Cornick 1957 2 PH K140 (C).
23 Mhlongo 1942 NPD 134; Churchill 1959 2 SA 575 (A) 580.
24 Sashi 1976 2 SA 446 (N) 447; Killian 1977 2 SA 31 (C) 32, 35; L 1981 1 SA 499 (B) 500.
398 CRIMINAL LAW

order to differentiate between seduction and abduction the law requires X to

have the intention to remove Y for at least a substantial period.25 Whether the
removal in fact lasts a substantial period, is immaterial; all that is required is
that X should intend the removal to be for such a period.26
The intention to marry or have intercourse with Y must be present at the time
of the removal. If the minor is removed for an innocent purpose, and it is only
afterwards that X decides to have intercourse, the crime is not committed.27
In most cases X intends to marry or have intercourse with Y herself, but
abduction can equally be committed if it is envisaged that Y be married to or
have sexual intercourse with a third person.28 Whether the marriage or the sexual
intercourse in fact takes place is immaterial; all that is required is that marriage
or sexual intercourse be contemplated by X at the time of removal of the minor
from control.29
10 Without the consent of parents or guardian The removal must take
place without consent. The consent which must be absent is not that of Y, but
that of her parents or guardian,30 because the crime is not committed against Y,
but against her parents or guardian. Even if Y herself solicited the abduction or
induced X to take her away, this affords him no defence if the parents did not
consent.31 There must be consent both to the physical removal of Y from con-
trol and to the further purpose of the removal, namely marriage or intercourse.
In order to obtain a conviction, the state must prove that neither of the parents
consented to the removal. If one of them consented, a crime is not committed.
After all, the consent of both is required if Y wishes to marry.
There are conflicting decisions on whose consent must be lacking if Y is
removed not while she is under the direct control of her parents in her parental
home but while she is, for example, spending a holiday with relations or staying
in a boarding school. Is it sufficient for a conviction that the consent of the per-
son in loco parentis is lacking, without enquiring whether the parents con-
sented?32 It is submitted that the consent of both the parents or guardian (who
has the de iure right to withhold consent to the minor’s marriage) and the
person who has custody of the minor (and who, thus, exercises de facto control
over the minor) must be lacking. The reason for this is that the crime relates to
both the de iure right of a parent or guardian to consent or withhold consent to
________________________

25 Killian supra 32, 35; L supra 500.

26 In Lesia 1978 3 SA 930 (B) a removal of three days was not regarded as sufficient. This
case is irreconcilable with Churchill supra 580 and Killian supra 36H. In the latter case a
period of only ten hours was held to be sufficient.
27 Sashi 1976 2 SA 446 (N) 447.
28 As in Ncedani 1908 EDC 243 and Adams 1911 CPD 863.
29 Hanna 1937 TPD 236 241.
30 Jorgenson 1935 EDL 219 223; Hlapo 1944 OPD 166 172.
31 Clark 1914 TPD 50 52; Kahn 1928 CPD 328 333; Hanna 1937 TPD 236 237. In Kahn
and Hanna Y misinformed X that she was pregnant, thereby inducing him to marry her.
In Clark Y threatened to commit suicide unless X took her away.
32 In Hlapo 1944 OPD 166 and Nortje 1955 2 PH H138 (O) eg it was held that it is only the
guardian’s consent which is in question, whereas in Van Zyl 1944 SWA 1 and Thomas
1925 EDL 248 it was held that it is the consent of the person in loco parentis which is in
question.
 CRIMES AGAINST THE FAMILY 399

the minor’s marriage and the de facto control over the minor.33 It is also submit-
ted that if the parents are divorced and the court has awarded the custody of the
minor to one parent, abduction is committed when the consent of the custodian
spouse is lacking, the consent of the non-custodian spouse being irrelevant.34 It
is furthermore submitted that the crime cannot be committed in respect of a
minor who has neither parents nor a guardian.35
11 Unlawfulness There must be no justification for X’s conduct. The un-
lawfulness may conceivably be excluded by coercion (necessity).
12 Intention The form of culpability in this crime is intention. In terms of the
general principles of liability, X’s intention must relate to all the definitional
elements as well as the unlawfulness. X must therefore know that the person he
is taking is an unmarried minor,36 that she is still in somebody else’s control,37
and that the parent or guardian has not consented to the removal.38X must have
this knowledge at the time of the removal. Dolus eventualis suffices.39

________________________

33 To assume that the crime could be committed where the parents consented but the person
who exercised de facto control did not, would mean that the crime could be committed
against somebody who had no de iure right to consent to the minor’s marriage. Con-
versely, to assume that the crime could be committed where the custodian consented but
the parents did not would mean that there could be abduction where there was no infringe-
ment of the de facto control over the minor. This aspect of the crime is discussed in detail
by Snyman 1972 THRHR 265.
34 If this were not so, abduction could be committed without there being any breach of the
de facto control over the minor, namely where the custodian spouse consented to the re-
moval but the non-custodian spouse withheld consent. See Snyman 1972 THRHR 265
274–277.
35 Snyman 1972 THRHR 265 279.
36 Jorgenson 1935 EDL 219 223; Churchill 1959 2 SA 575 (A) 578.
37 Jorgenson supra 223.
38 Sita 1954 4 SA 20 (E) 23A.
39 Killian 1977 2 SA 31 (C) 32, 36.
 CHAPTER
XIII

CRIMES AGAINST PUBLIC WELFARE

A CORRUPTION
1 Introduction Even if a country has the best possible statutes and legal
rules, any attempts by its government to construct a fair and prosperous dispen-
sation for its citizens would fail if corruption within its society were rife. Cor-
ruption erodes moral values as well as the credibility of public authorities and
its organs, undermines legal certainty and faith in the rule of law, leads to a
dysfunctional public and private sector, endangers the free market economy,
creates a breeding ground for organised crime, results in some people becoming
rich at the expense of others, increases levels of poverty, impedes economic
development, destroys the pillars of democracy, creates a culture of dishonesty
and leads to lack of faith in a country’s leaders.
Corruption is presently punishable in terms of the Prevention and Combating
of Corrupt Activities Act 12 of 2004. This is a very long and detailed act. Given
the style, scope and aim of this book, it is impossible to set out here its pro-
visions comprehensively. The Act contains a general crime of corruption,
followed by a long list of specific crimes of corruption pertaining to specific
classes of persons or situations only. In the discussion which follows, the em-
phasis will be on the general crime of corruption.
In formulating the specific crimes of corruption, the legislature simply re-
peated large portions of the formulation of the general crime, adding only a few
provisions facilitating a section’s application to a specific class of persons or a
specific type of situation. There is, accordingly, a large measure of repetition in
the Act. The discussion which follows will aim at avoiding such repetitions by
not discussing each specific crime of corruption in detail, but in outline only.
An understanding of the elements of the general crime would make it fairly
easy to understand the legislature’s intention in the formulations of the specific
crimes.
2 Historical In the common law the crime presently known as corruption
was known as bribery.1 This common-law crime could be committed by or in
________________________

1 Patel 1944 AD 511 521; Chorle 1945 AD 487 492; Gouws 1975 1 SA 1 (A).

401
402 CRIMINAL LAW

respect of a state official only. In order to punish bribery of people who were
not state officials but, for example, agents or representatives in private enter-
prises, the Prevention of Corruption Act 6 of 1958 created a separate statutory
crime. The Corruption Act 94 of 1992 replaced both the common law and the
abovementioned Act 6 of 1958. The 1992 Act was in turn replaced by the Pre-
vention and Combating of Corrupt Activities Act 12 of 2004.
The most important principles for liability for corruption in the 2004 Act can
also be found in the earlier provisions relating to corruption and bribery, although
the terminology used to describe them may be different. For this reason cases
relating to the previous crimes of bribery and corruption may still be of value in
order to throw light on the meaning of the corresponding requirements in the
2004 Act.
3 The general crime of corruption: definition in the Act Section 3 of the
Act contains the formulation of the general crime of corruption. The section
reads as follows:

Any person who, directly or indirectly –

(a) accepts or agrees or offers to accept* any gratification* from any other
person, whether for the benefit of himself or herself or for the benefit
of another person; or
(b) gives* or agrees or offers to give to any other person any gratifi-
cation*, whether for the benefit of that other person or for the benefit
of another person,
in order to act, personally or by influencing another person so to act, in a
manner –
(i) that amounts to the –
(aa) illegal, dishonest, unauthorised, incomplete, or biased; or
(bb) misuse or selling of information or material acquired in the
course of the,
exercise, carrying out or performance of any powers, duties or func-
tions arising out of a constitutional, statutory, contractual or any
other legal obligation;
(ii) that amounts to –
(aa) the abuse of a position of authority;
(bb) a breach of trust; or
(cc) the violation of a legal duty or a set of rules,
(iii) designed to achieve an unjustified result; or
(iv) that amounts to any other unauthorised or improper inducement*
to do or not to do anything,
is guilty of the offence of corruption.

The words in the definition indicated with an asterisk are in turn further defined
in sections 1 and 2. These definitions will be given below in the discussions of
the different elements of the crime.
If one analyses the language of the definition by provisionally “cutting out”
conjunctive words or phrases, it is possible to construe an abbreviated defin-
ition which reads as follows:
 CRIMES AGAINST PUBLIC WELFARE 403

“Anybody who
(a) accepts any gratification from anybody else, or
(b) gives any gratification to anybody else
in order to influence the receiver to conduct herself in a way which
amounts to the unlawful exercise of any duties, commits corruption.”

4 Corruption by giver and corruption by recipient Corruption can be

committed in many ways. If one attempts to make statements about corruption
which are applicable to all instances of the crime, one becomes entangled in
long and diffuse formulations which are not easy to understand immediately. In
order to overcome this problem, discussions of the crime usually distinguish
between the two most important ways in which the crime can be committed.
These two main categories are corruption committed by the giver and corruption
committed by the recipient. Corruption is committed if one party gives a gratifi-
cation (benefit) to another party and the latter accepts it as inducement to act in
a certain way. Both parties – the giver as well as the recipient – commit corrup-
tion. The expression “corruption by a giver” refers to the conduct of the giver,
and “corruption committed by the recipient” refers to the conduct of the party
who accepts the gratification. In the discussion of the crime that follows, the
party who gives the gratification is referred to as X, and the party who accepts
the gratification, as Y. In discussions of the previous corresponding crimes, one
sometimes comes across the expression “active corruption” and “passive cor-
ruption”. “Active corruption” refers to the conduct whereby X gives a gratifi-
cation to Y, and “passive corruption” to the conduct of the recipient (Y) of the
gratification from X.
The word “gives” includes an agreement by X to give the gratification to Y,
or the offering by X to give it to Y. The word “accepts” in turn includes an
agreement by Y to accept the gratification or the offering by Y to accept it.2
In the Act the legislature distinguishes between these two forms of corruption
not only in the definition of the general crime, but also in the definitions of the
specific crimes. In section 3, quoted above, in which the general crime is defined,
corruption by the recipient is set out in the subdivision of the section marked
(a), while corruption committed by the giver is set out in the subdivision marked
(b). The legislature employs the somewhat illogical sequence of first setting out
the crime committed by the recipient and thereafter the crime committed by the
giver. In the discussion which follows, the same sequence will be adopted.
Corruption by the giver is, in principle, merely a mirror image of corruption
by the recipient. The same requirements apply to both these forms of corruption,
provided certain terms used in describing the one are replaced by other terms
when setting out the other. In order to avoid duplication, corruption by the giver
will, in the discussion which follows, not be discussed in such detail as corrup-
tion by the recipient. The emphasis will be on corruption by the recipient. It is
in the discussion of this form of corruption that the different requirements or
elements of the crime will be identified and explained.

________________________

2 S 3(a) and (b).

404 CRIMINAL LAW

5 General crime: corruption committed by the recipient

(a) Elements of crime The elements of the general crime of corruption
committed by the recipient are the following:
(i) the acceptance by Y (the act);
(ii) of a gratification;
(iii) in order to act in a certain way (the inducement);
(iv) unlawfulness;
(v) intention.
Each of these elements will now be discussed.
(b) The acceptance The act consists in Y’s accepting a gratification from X.
The legislature employs two ways of broadening the meaning of “accept”:
Firstly, the Act provides that certain acts which precede the acceptance,
namely merely an agreement by Y to accept the gratification or merely an offer
by Y to accept it, satisfies the present requirement.3 It follows that, for the pur-
poses of the crime of corruption, no distinction is made between the substantive
crime (stem crime), on the one hand, and conspiracy or incitement to commit
the substantive crime, on the other hand. Since the mere making of an offer
already constitutes an act of corruption, it is not necessary for the state to prove
the existence of a definite agreement between the corruptor and the corruptee,
nor need it prove the payment of a quid pro quo by the corruptee.4
Secondly, the Act provides that the words or expressions “accept”, “agree to
accept” and “offer to accept”, as used in the Act, include the following:
(i) to demand, ask for, seek, request, solicit, receive or obtain a gratification;
(ii) to agree to commit the acts listed under (i);
(iii) to offer to commit the acts listed under (i)5.
The following factors or considerations do not form part of the requirement of
the act of corruption (or of any other requirement for the crime) and therefore
offer neither X nor Y a defence:
(i) The fact that Y does not accept the gratification “directly”, but only
“indirectly”.6 It is therefore immaterial whether Y makes use of an inter-
mediary to receive the gratification.
(ii) The fact that Y did not in actual fact subsequently perform the act which
X had induced her to perform.7 If Y had accepted the gratification but the
entire evil scheme was exposed and Y arrested by the police before she
could fulfil her part of the agreement with X, Y is nevertheless guilty of
the crime. It is therefore incorrect to allege that the crime is completed
only after Y had done what she agreed to do. It is completed at a much
earlier stage, namely the moment X consents to accepting the gratification.
________________________

3 S 3(a)b).
4 Selebi 2012 1 SACR 209 (SCA) par 97.
5 S 2(3)(a).
6 S 3.
7 S 25(c).
 CRIMES AGAINST PUBLIC WELFARE 405

(iii) The fact that the corrupt activity between X and Y was unsuccessful.
Unlike, for example, murder, corruption is not a crime which consists in
the actual infringement of the protected interest. It is sufficient that there
is merely a threatened infringement of such an interest.8 How far Y has
proceeded with her plans before she is caught, may of course have a bear-
ing on the sentence; the same principle according to which mere attempt
to commit a crime is punished more leniently than the actual commission
of the completed crime, applies here. The fact that the state or private
enterprise involved did not suffer any prejudice or loss as a result of X or
Y’s conduct similarly affords X or Y no defence.
(iv) The fact that Y accepts the gratification but that she, in actual fact, does
not have the power or right to do what X wishes her to do.9 Therefore, if
X gives Y a gratification in the belief that Y will give her (X) a driver’s
licence to which she is not entitled, but it appears that it is not Y who
must decide upon the granting of a driver’s licence but Z, such a mistake
will afford neither X nor Y a defence.
(v) The fact that what X requested Y to do accorded with Y’s duties, and that
X accordingly did not request Y to do something “improper”. In the
common law this consideration afforded neither X nor Y a defence. The
reason for this rule was that it was bribery even to “bribe an official to do
her duty”.10 Thus, if X had given public prosecutor Y an amount of
money in order to prosecute Z of some crime, but Y would in any event
have prosecuted Z because she had the power to do so and also because
there was sufficient evidence at her disposal of the commission of the
crime by Z, both X and Y would have rendered themselves guilty of the
crime. It is submitted that the same principle applies to the 2004 act. Such
conduct accords with one or more of the following “aims” set out in sec-
tion 3(ii), (iii) and (iv): “in order to act . . . in a manner . . . that amount[s]
to . . . the abuse of a position of authority . . .or . . . the violation of a legal
duty or a set of rules; or “in order to act . . . in a manner . . . designed to
achieve an unjustified result” or “in order to act . . . in a manner . . . that
amounts to any other unauthorised or improper inducement to do or not to
do anything.”
(c) The gratification Section 1 contains a long definition of the word “gratifi-
cation”. It provides as follows:11

“In this Act, unless the context indicates otherwise . . .

‘gratification’, includes –
(a) money, whether in cash or otherwise;

continued
________________________

8 Other examples of such a type of crime are high treason and the negligent driving of a
vehicle. Cf supra III A 9.
9 S 25(a).
10 Lavenstein 1919 TPD 348 382–383; Patel 1944 AD 511 521–523; Van der Westhuizen
1974 4 SA 61 (C) 63.
11 S 1(iii).
406 CRIMINAL LAW

(b) any donation, gift, loan, fee, reward, valuable security,12 property13 or
interest in property of any description, whether movable or immovable,
or any other similar advantage;
(c) the avoidance of a loss, liability, penalty, forfeiture, punishment or
other disadvantage;
(d) any office, status, honour, employment, contract of employment or ser-
vices, any agreement to give employment or render services in any
capacity and residential or holiday accommodation;
(e) any payment, release, discharge or liquidation of any loan, obligation
or other liability, whether in whole or in part;
( f ) any forbearance to demand any money or money’s worth or valuable
thing;
(g) any other service or favour or advantage of any description, including
protection from any penalty or disability incurred or apprehended or
from any action or proceedings of a disciplinary, civil or criminal nature,
whether or not already instituted, and includes the exercise or the for-
bearance from the exercise of any right or any official power or duty;
(h) any right or privilege;
(i) any real or pretended aid, vote, consent, influence or abstention from
voting; or
( j) any valuable consideration or benefit of any kind, including any dis-
count, commission, rebate, bonus, deduction or percentage”.

It is clear that the word “gratification” as used in the Act has a very broad
meaning. The use of the word “includes” means that the meaning of “gratifi-
cation” is not limited to the contents of the terms set out in the definition quoted
above. The words “any other service or favour or advantage of any description”
in paragraph (g) of the definition makes it clear that “gratification” is not limited
to a corporeal or patrimonial benefit. It is submitted that the word “gratification”
as used in the Act is wide enough to include information.14 It is further submit-
ted that it is also wide enough to include sexual gratification, as where Y, a male
traffic officer, catches female motorist X committing some traffic offence, and
then offers not to fine or prosecute her if she has intercourse with him.15
________________________

12 “Valuable security” is defined in s 1 as “any document –

(a) creating, transferring, surrendering or releasing any right to, in or over property;
(b) authorising the payment of money or delivery of any property; or
(c) evidencing the creation, transfer, surrender or release of any such right, the payment
of money or delivery of any property or the satisfaction of any obligation”.
13 This word is defined in s 1 as “money or any other movable, immovable, corporeal or in-
corporeal thing, whether situated in the Republic or elsewhere and includes any rights,
privileges, claims, securities and any interest therein and all proceeds thereof”.
14 The word “information” is specifically mentioned in the definition of the general crime in
section 3. See subdivision (i)(bb) of s 3.
15 W 1991 2 SACR 642 (T). In this case X was convicted of contravention of s 2(a) of the
Prevention of Corruption Act 6 of 1958. This Act is one of the forerunners of the present
Act.
 CRIMES AGAINST PUBLIC WELFARE 407

(d) In order to act in a certain manner (the “inducement” element):

(i) General Y must accept the gratification in order to act in a certain man-
ner. Stated differently, she must accept the gratification as an inducement
to act in a certain manner. This means she must accept the gratification
with a certain aim or motive.
(ii) The aims The different aims set out in the Act are the following:
(aa) “[I]n order to act . . . in a manner . . . that amounts to the . . . illegal,
dishonest, unauthorised, incomplete, or biased . . . exercise, carry-
ing out or performance of any powers, duties or functions arising
out of a constitutional, statutory, contractual or any other legal
obligation”.
(bb) “[I]n order to act . . . in a manner . . . that amounts to the misuse or
selling of information or material acquired in the course of the
exercise, carrying out or performance of any powers, duties or func-
tions arising out of a constitutional, statutory, contractual or any
other legal obligation”.
(cc) “[I]n order to act . . . in a manner . . . that amounts to the abuse of a
position of authority, a breach of trust, or the violation of a legal
duty or a set or rules”.
(dd) “[I]n order to act . . . in a manner . . . designed to achieve an un-
justified result”.
(ee) “[I]n order to act . . . in a manner . . . that amounts to any other un-
authorised or improper inducement to do or not to do anything”.
According to section 1 the word “inducement” “includes to per-
suade, encourage, coerce, intimidate or threaten to cause a person”.
It is clear that these aims are formulated widely and that they cover a very
wide field. The fourth aim (“in order to . . . achieve an unjustified result”)
is so widely formulated that it arguably includes almost all the other aims.
(iii) General principles applicable to the aims The following general prin-
ciples apply to the aims set out above:
(aa) The expression “to act” appears in each of the aims. Section 2(4) pro-
vides that this expression includes an omission.
(bb) It is irrelevant whether Y plans to achieve this aim personally or
whether she plans to achieve this aim by influencing another person to act
in a certain manner.16 Therefore, Y may make use of an intermediary to
achieve the aim.
(cc) The aims apply in the alternative. It is sufficient for the state to
prove that Y had only one of these aims in mind when she accepted the
gratification.
(dd) It is irrelevant whether Y accepted the gratification for her own bene-
fit or for the benefit of someone else.17 Therefore, the fact that Y receives
money from X in a corrupt way with the aim of using the money to pro-
vide for her sick child, affords her no defence.
________________________

16 See the phrase in s 3 between (b) and (i).

17 S 3(a) and (b).
408 CRIMINAL LAW

(ee) This element (namely that Y must receive the gratification in order
to act in a certain way) overlaps with the fifth and last element of the
crime, namely the intention requirement. The words “in order to” refer to
Y’s intention. This overlapping is not strange, because corruption is a
crime of double intention. Y must have not only the intention of receiving
the gratification, but also the further intention to receive it in order to act
in a certain way in future.18
( ff ) The fact that Y did not in actual fact have the power to act in the
manner in which she was induced to act, affords Y no defence.19 There-
fore, if Y receives money from X as inducement to grant X a certain
licence, but it appears that it is in actual fact somebody else in some higher
position in the particular government department or private enterprise
whose task it is to decide upon the granting of that licence, Y nevertheless
commits corruption.
(iv) Proof of the existence of the inducement In section 24(1) the Act creates
a presumption facilitating the task of the state to prove that Y received the
gratification in order to achieve one or more of the aims set out above.
The cumbersome and detailed formulation of the presumption20 can be
summarised as follows:
If it is proved that Y had accepted the gratification from another person
who sought to obtain a contract, licence, permit, etcetera, it is presumed
________________________

18 Other examples of crimes of double intent are abduction, where, apart from an intent to
remove the minor, X must also have an intent to marry or have sexual intercourse with her,
housebreaking with intent to commit a crime and assault with intent to commit a crime.
19 S 25(a). The same principle applied to crimes which were forerunners of the present
crime. See Chorle 1945 AD 485 496; Shaik 2007 1 SACR 142 (D) 158a–b.
20 The precise wording of s 24(1) is as follows: (1) Whenever a person is charged with an
offence under Part 1 or 2, or section 21 (in so far as it relates to the aforementioned
offences) of Chapter 2, proof that that person, or someone else at the instance of that
person –
(a) accepted or agreed or offered to accept any gratification from; or
(b) gave or agreed or offered to give any gratification to,
any other person –
(i) who holds or seeks to obtain a contract, licence, permit, employment or anything
whatsoever from a public body, private organisation, corporate body or other organ-
isation or institution in which the person charged was serving as an official;
(ii) who is concerned, or who is likely to be concerned, in any proceedings or business
transacted, pending or likely to be transacted before or by the person charged or
public body, private organisation, corporate body, political party or other organisa-
tion or institution in which the person charged was serving as an official; or
(iii) who acts on behalf of a person contemplated in subparagraph (i) or (ii),
and, if the State can further show that despite having taken reasonable steps, it was not
able with reasonable certainty to link the acceptance of or agreement or offer to accept or
the giving or agreement to give or offer to give the gratification to any lawful authority or
excuse on the part of the person charged, and in the absence of evidence to the contrary
which raises reasonable doubt, is sufficient evidence that the person charged accepted or
agreed or offered to accept such gratification from that person or gave or agreed or offered
to give such gratification to that person in order to act, in a manner –
[then follows a precise repetition of the “aims” already formulated in s 3(i), (ii) (iii) and
(iv) and which have already been quoted above in paragraph 6(d)(ii) in the text].
 CRIMES AGAINST PUBLIC WELFARE 409

that Y accepted the gratification in order to achieve one or more of the

aims set out in the definition of the crime, provided
(aa) the state can show that despite having taken reasonable steps, it
was not able with reasonable certainty to link the acceptance of the
gratification to any lawful authority or excuse on the part of the
person charged; and
(bb) there is no evidence to the contrary which raises reasonable doubt.
Before the present Constitution with its Bill of Rights came into effect,
the legislature often inserted presumptions into statutes in order to facili-
tate the task of the state to obtain a conviction. Since then many of these
presumptions have been declared unconstitutional because it was in-
compatible with the presumption of innocence. In the formulation of the
present presumption, the legislature took care to formulate it in such a
way that it would not be easy to declare it unconstitutional.
As far as requirement numbered (aa) in the summarised formulation of
the presumption above is concerned, it must be kept in mind that the state
must normally prove that Y had no “lawful authority or excuse” for accept-
ing the gratification. Sometimes members of the public must pay certain
fees in order to receive certain documents, such as passports or driver’s
licences, from the state. An official does not commit the crime if she re-
ceives the payment from a member of the public in return for the granting
of the document concerned. However, sometimes it may be difficult for
the state to determine whether, in terms of the rules applying to her work,
Y was entitled to receive the money for her conduct. For the presumption
to come into operation, it is not sufficient that the state merely alleges that
it (the state) does not know whether the acceptance of the money was
lawful or not. The state must go further and prove, firstly, that it took
reasonable steps to get an answer to this question and, secondly, that in
spite of these reasonable steps, it was unable to determine with reasonable
certainty whether there were lawful grounds for Y to accept the money
(gratification).
As far as requirement numbered (bb) in the summarised formulation of
the presumption above is concerned, the insertion of these words may be
regarded as an attempt by the legislature to prevent the presumption being
declared unconstitutional. The expression mentioned under (bb) amounts
to the placing of a procedural duty on Y to create a reasonable doubt as to
whether she has accepted the gratification as inducement to act in a cer-
tain way, as set out in the section. Y must ensure that, either in the course
of her own evidence or in the course of evidence given by another, a doubt
arises as to whether she received the gratification as inducement to act in
the way she acted. Such a “duty to create a doubt” cannot be equated to a
reverse onus, and it is submitted that in this way the legislature has ensured
that the presumption is constitutional.
The reason for the insertion of these words (ie, these under requirement
numbered (bb) above) into the section becomes clear if one considers the
judgment of the Constitutional Court in Manamela.21 In this case, in which
________________________

21 2000 1 SACR 414 (CC).

410 CRIMINAL LAW

the court considered the constitutionality of the presumption created in

section 37 of the General Law Amendment Act 62 of 1955, the Court held
that these words (in the phrase set out in (bb) in the above abbreviated
formulation of the presumption) should be “read into” the section to pre-
vent it being unconstitutional. It is highly probable that it was exactly this
judgment which served as model for the insertion of this phrase into the
subsection. It is submitted that, because of the insertion of these words,
the presumption is constitutional.
(e) Unlawfulness The element of unlawfulness is not expressly mentioned in
the definition of the crime, but must nevertheless be read into it. Unlawfulness,
that is, the requirement that the act should be unjustified, is a requirement or
element of every crime. The general meaning of “unlawfulness” is “contrary to
the good morals or the legal convictions of society”.22 This implies that Y’s
conduct is not covered by a ground of justification.
An act which would otherwise amount to corruption, would not be unlawful
if X or Y acted under compulsion. X or Y would then be entitled to rely on
necessity as a ground of justification. A person acting as a trap does not act un-
lawfully if she agrees to receive a gratification from another person in order to
trap the latter person in the act of committing (active) corruption.23 It is submit-
ted that certain officials or employees, such as porters or waiters, do not act un-
lawfully if they receive small amounts of money from the public as “tips” for
services which they perform satisfactorily. Such conduct is “socially adequate”
or acceptable; it accords with the good morals or legal convictions of the com-
munity. The same applies as regards the receiving of gifts of a reasonable scope
by employees at occasions such as weddings or retirement or completion of a
“round number” of years’ work (eg 20 years’ service). (The acceptance of a
“golden handshake” which is disproportionate to the services rendered may well
be unlawful.)
If clients or prospective clients of a business accept an invitation for dinner
by the business, such conduct is usually regarded as acceptable business prac-
tice. However, if such clients accept an invitation for a luxury holiday overseas,
such conduct should, it is submitted, not be regarded as acceptable and ought to
amount to the commission of corruption. However, between these two examples,
the first being regarded as in accordance with the legal convictions of society
but the second not, lies a “grey area”. One thinks in this regard of the accept-
ance by a client of an invitation to a luxury box at a sporting venue, accom-
panied by all kinds of “perks”, such as free food and drinks. Presumably such
conduct amounts to an acceptable way in which the free-market economy
operates, and is therefore presumably not contrary to the legal convictions of
the community. Yet where exactly the border lies between what is acceptable
practice and what amounts to corruption, may be difficult to decide.
( f ) Intention It is beyond doubt that the legislature did not intend to create a
crime of strict liability, that is, one in which no form of culpability is required.
As far as the form of culpability is concerned, it is intention, as opposed to
________________________

22 Supra IV A 8; Selebi 2012 1 SACR 209 (SCA) par 8. On the element of unlawfulness in
corruption generally, see also the remarks in Shaik 2007 1 SACR 142 (D) 158c–d.
23 Ernst 1963 3 SA 666 (T) 668A–B; Ganie 1967 4 SA 203 (N).
 CRIMES AGAINST PUBLIC WELFARE 411

negligence, which is required.24 Words or expressions such as the following

used in section 3, presuppose the requirement of intention: “accept”, “agree”,
“offer”, “inducement”, “in order to . . .”, “dishonest”, “biased” and “designed”.
Corruption is a crime of double intent: Y must have not only the intention of
accepting the gratification, but must furthermore also have the intention of act-
ing in a certain manner in future in return for the gratification. Y must have the
required intention at the moment he receives the gratification.
According to general principles, intention always includes a certain knowledge,
namely knowledge of the nature of the act, the presence of the definitional
elements and the unlawfulness.25 A person has knowledge of a fact not only if
she is convinced of its existence, but also if she foresees the possibility of the
existence of the fact but is reckless towards it; in other words she does not
allow herself to be deterred by the possibility of the existence of such a fact.26
She then has intention in the form of dolus eventualis.
The Act contains a provision which expressly applies the principle set out
immediately above to this crime. Section 2(1) provides that for the purposes of
the Act a person is regarded as having knowledge of a fact, not only if she has
actual knowledge of the fact, but also if the court is satisfied that she believes
that there is a reasonable possibility of the existence of that fact and she fails to
obtain information to confirm the existence of the fact. This provision in reality
contains no new principle; it is merely an application of the general rule that
intention in respect of a circumstance can also exist in the form of dolus eventu-
alis;27 more specifically, that “wilful blindness” amounts to knowledge of a fact
and, accordingly, intention. These principles have previously been accepted in
our case law.28 The omission mentioned in section 2(1) (“has failed to . . .”)
must be construed as an intentional omission on the part of Y. It cannot be
applied to a negligent omission.
The fact that Y accepted the gratification without intending to perform the act
which she ostensibly undertook to perform, affords Y no defence.29 If Y, who is
a member of a commission who must award a tender, accepts money from X as
inducement to award the tender to X, the fact that Y received the money with-
out the intention of actually awarding the tender to X or to influence the other
members of the commission to do so, affords Y no defence. The Act provides
so expressly,30 but in reality the principle was applied even in respect of crimes
which were the forerunners of the present crime.31
According to the rules relating to corruption in the corresponding crimes of
corruption or bribery before the present Act came into operation, Y committed
corruption by the recipient even if it was not proven that X intended to influ-
ence Y to act in a certain way. What was important was that Y should have
________________________

24 Selebi 2012 1 SACR 209 (SCA) par 8, 9.

25 Supra V C 1, 2.
26 Supra V C 6–8; Selebi supra par 9.
27 Supra V C 6–8.
28 Meyers 1948 1 SA 375 (A) 382; Bougarde 1954 2 SA 5 (C) 7–9; Ex parte Lebowa
Development Corporation Ltd 1989 3 SA 71 (T) 101.
29 S 25(b).
30 S 25(b).
31 Roets 1954 3 SA 512 (A) 515–516.
412 CRIMINAL LAW

believed that she was being corrupted. If the evidence revealed that X never
had the intention to influence Y to act improperly, Y was nevertheless guilty of
this form of the crime if she (Y) believed that she was being bribed.32 Y was
accordingly guilty even if she knew that X was under a false impression that
she (X) had to pay money to her (Y) in order to act in a certain way, whereas in
actual fact it was not necessary for X to pay such money. In order to ensure Y’s
conviction, it was in other words not necessary for the prosecution to prove that
Y’s intention or knowledge included X’s intention or knowledge.
Does this rule apply also to the crime created in the 2004 Act? It is submitted
that the answer to this question is positive. In the definition in the 2004 Act the
legislature requires nowhere that Y should have known what X’s intention of
knowledge or even motive was. The formulation reads merely: “Any person
who . . . accepts . . . any gratification . . . in order to act . . . in a manner which
. . .” The rule of interpretation that requires an act to be construed as far as pos-
sible in the light of the common law, can also serve as support for the view
advocated here.
(g) Accomplice liability and accessories after the fact Section 20 creates a
separate crime punishing accomplices and accessories after the fact in respect
of corruption. Under the title “Accessory to or after offence”, the section pro-
vides (in abbreviated form): “Any person who, knowing that property . . . forms
part of any gratification which is the subject of an offence [in terms of certain
sections of the Act] (a) enters into . . . any dealing in relation to such property
. . . or (b) uses . . . or holds, receives or conceals such property . . . is guilty of
an offence”. The section is completely unnecessary, because the common-law
rules relating to the liability of accomplices and accessories after the fact are
wide enough to cover situations of people assisting in the commission of a
crime before or after its commission.
(h) Attempt, conspiracy and inducing Section 21 provides that any person
who (a) attempts, (b) conspires or (c) aids, abets, induces, incites, instigates,
instructs, commands, counsels or procures another person to commit an offence
in terms of the Act, is guilty of an offence. The section is unnecessary. A per-
son who aids or abets another to commit a crime can be convicted of being a
co-perpetrator or an accomplice in the commission of the crime in terms of the
ordinary common-law principles of criminal liability. Furthermore, section 18
of the Riotous Assemblies Act 17 of 1956 already provides for the punishment
of people who attempt to commit “any offence, whether at common law or
against a statute . . .”
(i) Punishment A person convicted of the general crime of corruption is
liable to the following sentences:
(aa) If she is sentenced by a High Court, an unlimited fine or imprisonment
for life.33 In terms of the provisions of section 1(1)(b) of the Adjustment
of Fines Act 101 of 1991, imprisonment as well as a fine may be imposed.
________________________

32 See Gouws 1975 1 SA 1 (A) 12–13, which was decided at the time when corruption
(bribery) was still a common-law crime. Cf also the following words in the definition of
the previous crime of corruption in s 1(1)(b)(i) of Act 94 of 1992: “whether the giver or
offeror of the benefit has the intention to influence the person upon whom such power has
been conferred . . . so to act or not”.
33 S 26(1)(a)(i).
 CRIMES AGAINST PUBLIC WELFARE 413

(bb) If she is sentenced by a Regional Court, an unlimited fine or imprison-

ment for a period not exceeding 18 years.34 If the provisions of section
1(1)(a) of the Adjustment of Fines Act 101 of 1991 are taken into con-
sideration, the maximum fine that may be imposed by a Regional Court
is 18 × R20 000 = R360 000. In terms of the provisions of section 1(1)(b)
of the abovementioned Act of 1991, a fine as well as a sentence of im-
prisonment may be imposed.
(cc) If she is sentenced by a Magistrate’s Court, an unlimited fine or imprison-
ment for a period not exceeding five years.35 If the provisions of section
1(1)(a) of the Adjustment of Fines Act 101 of 1991 are taken into con-
sideration, the maximum fine that may be imposed by a Magistrate’s
Court is 5 × R20 000 = R100 000. In terms of the provisions of section
1(1)(b) of the abovementioned Act of 1991, a fine as well as a sentence
of imprisonment may be imposed.
In addition to any fine which a court as mentioned above may impose, a court
may also impose a fine equal to five times the value of the gratification in-
volved in the crime.36
6 General crime of corruption: corruption by the giver
(a) General Corruption by the recipient, discussed above, deals with the
acceptance by Y of a gratification given to her by X. Corruption by the giver,
on the other hand, deals with the giving of a gratification by X to Y. Corruption
by the giver is but a mirror image of corruption committed by the recipient. One
must merely replace the word “accept” with the word “give”. Exactly because
corruption by the giver is but a mirror image of corruption by the recipient, it is
unnecessary to repeat once again, in the course of discussing corruption by the
giver, all the rules dealing with the crime discussed above under corruption by
the recipient. The discussion of corruption by the giver which follows can
therefore be summarised very briefly. Unless otherwise indicated, all the rules
governing corruption by the recipient apply mutatis mutandis (that is, by re-
placing in each instance the word “accept” with the word “give”) also to cor-
ruption by the giver. It is more or less only in the requirement of the act that
corruption by the giver is structured differently from corruption by the recipient.
(b) Elements of crime The elements of the general crime of corruption
committed by the giver are the following:
(i) the giving by Y to X (the act);
(ii) of a gratification;
(iii) in order to influence Y to act in a certain way (the inducement);
(iv) unlawfulness;
(v) intention.
Each of these elements will now be discussed.

________________________

34 S 26(1)(a)(ii).
35 S 26 (a)(a)(iii).
36 S 26(3).
414 CRIMINAL LAW

(c) The giving by X to Y The act consists of X giving a gratification to Y.

The legislature employs two ways of broadening the meaning of the word “give”:
Firstly, it provides that certain conduct by X which precedes the giving,
namely mere conspiracy to give or a mere offer to give, also satisfies the re-
quirement of the act (that is, the “giving”).37
Secondly, the Act provides that the words “give or agree or offer to give” as
used in the Act, include the following:
(i) to promise, lend, grant, confer or procure the gratification;
(ii) to agree to lend, grant, confer or procure the gratification;
(iii) to offer to lend, grant, confer or procure such gratification.38
The further aspects of the requirement of an act which were discussed above in
the corresponding requirement in corruption by the recipient,39 apply mutatis
mutandis also to corruption by the giver.
It is not a requirement for the crime of corruption by the giver that X should
have succeeded with her plan of action. Considerations such as the following
therefore afford X no defence: the fact that Y, although she created the im-
pression that she would accept the offer, in actual fact had no intention of doing
what X asked her to do;40 the fact that Y did not do what X requested her to
do;41 the fact that Y did not have the power to do that which she was requested
by X to do;42 the fact that Y rejected X’s offer; the fact that Y agreed but there-
after changed her mind and decided not to do what X had requested her to do;
and the fact that Y found it impossible to do that which she had undertaken to
do.
(d) The gratification This requirement is the same as the corresponding
requirement for corruption committed by the recipient and has already been set
out above in paragraph 5(c) in the discussion of that form of corruption.
(e) In order to act in a certain manner (the inducement element) This require-
ment is the same as the corresponding requirement for corruption committed by
the recipient, and has already been discussed above.43 The part of the section
dealing with this element is badly worded, but it is nevertheless clear that what
the legislature intended to say was the following: “any person who . . . gives . . .
any gratification . . . in order to induce the recipient to act . . . in a manner that
amounts to . . .” The words in italics, which express the meaning of the pro-
vision more clearly, do not appear in the text of the section, but are clearly
implied.
( f ) Unlawfulness This requirement is the same as the corresponding require-
ment for corruption by the recipient, and has already been discussed above.44

________________________

37 S 3(b).
38 S 2(3)(b).
39 Supra par 5(b).
40 S 25(b).
41 S 25(c).
42 S 25(a).
43 Supra 5(d).
44 Supra 5(e).
 CRIMES AGAINST PUBLIC WELFARE 415

(g) Intention This requirement is the same as the corresponding requirement

for corruption by the recipient, and has already been discussed above.45
(h) Accomplices, accessories after the fact, attempt, conspiracy and incite-
ment These aspects of corruption by the giver are the same as the corresponding
aspects of corruption by the recipient, and has already been discussed above.46
(i) Punishment The penalties prescribed for corruption by the giver are the
same as those prescribed for corruption by the recipient, and have already been
set out above.47
7 Corruption relating to specific persons or events As from section 4
onwards the legislature has created a variety of specific crimes of corruption,
each relating to a specific class of person or event. As already explained, it is an
impossible task to discuss each of these specific crimes in this book in detail. It
is, in any event, largely unnecessary, as large portions of the definition of these
crimes – and more specifically the long description of the “inducement elem-
ent” – are worded exactly the same as the general crime of corruption defined
in section 3; these provisions have already been discussed in some detail above.
What follows is an abbreviated version of each of these specific crimes.
(a) Corruption in respect of public officers Section 4 creates a crime limited
to corruption of public officers. “Public officers” are defined exhaustively in
section 1. A typical example of such an officer is a civil servant. The “act”
which Y is induced to perform (in the phrase “. . . in order to act . . . in a man-
ner . . . that amounts to . . .”) is defined in section 4(2) as including a large
number of specified acts.
(b) Corruption in respect of foreign public officials Section 5 creates a
crime limited to corruption of “foreign public officials”. This term is defined
more specifically in section 1. It includes inter alia somebody who holds a
legislative, administrative or judicial office of a foreign state.
(c) Corruption in respect of agents Section 6 creates a crime limited to cor-
ruption of agents. “Agent” is defined in section 1 as “any authorised represen-
tative who acts on behalf of his or her principal and includes a director, officer,
employee or other person authorised to act on behalf of his or her principal”.
Corruption committed by business people in the private sector can be criminal-
ised under this section.
The following is an example of corruption in the private sector: X, who works
for manufacturing company A, is charged with the duty of selling A’s products
to wholesalers. Y works for wholesale company B and is charged with buying
the type of products manufactured by company A for company B, so that com-
pany B may sell them to retailers. In order to influence Y to buy company A’s
products for company B to the exclusion of similar types of articles manu-
factured by other manufacturers, X gives Y the gift of an overseas family holi-
day. X then commits corruption by the giver while Y commits corruption by
the recipient.

________________________

45 Supra 5(f ).
46 Supra 5(g) and (h).
47 Supra 5(i).
416 CRIMINAL LAW

(d) Corruption in respect of members of the legislative authority Section 7

creates a crime limited to corruption of members of the legislative authority.
The act which the member is induced to perform is further defined in section
7(2). It includes exerting any improper influence over the decision making of
any person performing his or her functions as a member.
(e) Corruption in respect of judicial officers Section 8 creates a crime limited
to the corruption of judicial officers. The expression “judicial officer” is defined
in section 1, and includes judges and magistrates. The conduct which the judicial
officer is induced to perform is also further defined in section 8(2). A typical
example of this form of corruption is where someone gives a judge money or
offers to give her money, in order to persuade her not to give a judgment accord-
ing to the objective evaluation on the merits of the case, but to disregard the
merits and give judgment in favour of a certain party. If someone corrupts a
judicial officer, the conduct can also be punished as contempt of court.
( f ) Corruption in respect of the prosecuting authority Section 9 creates a
crime limited to corruption of the members of the prosecuting authority. The act
which Y is induced to perform is further defined in section 9(2). An example of
a case resorting under this heading, is where X gives Y, the prosecutor in a crim-
inal case, money in order to persuade Y to destroy or hide the docket in which
the particulars of the prosecution’s case are contained, so that it can be reported
missing, which will result in the prosecution not being successful. The type of
conduct criminalised under this heading may overlap with the common-law
crime of defeating or obstructing the course of justice.
(g) The receiving or offering of unauthorised gratification by a party to an
employment relationship Section 10 creates a crime which is limited to corrup-
tion committed in the course of an employment relationship. If, for example, an
employer (Y) accepts a gratification as inducement to promote one of her em-
ployers to the exclusion of others who may also merit promotion, she (Y) may
be charged with a contravention of this section.
(h) Corruption in respect of witnesses Section 11 creates a crime limited to
corruption in respect of somebody who is a witness in a court case.
(i) Corruption in respect of contracts Section 12 creates a crime limited to
corruption committed within the context of the entering into of contracts. A per-
son who, for example, gives or accepts a gratification in order to obtain a con-
tract from either the state or a private enterprise, or improperly to influence the
price to be agreed upon contravenes this section.
( j) Corruption in respect of the granting of tenders Section 13 creates a
crime limited to corruption committed in order to procure a tender. An example
in this context is where X gives an amount of money to Y, whose task it is to
decide to whom a tender should be awarded, in order to persuade Y to accept
X’s tender to the exclusion of other persons who also submitted tenders.
(k) Corruption in respect of auctions Section 14 creates a crime limited to
corruption committed in relation to auctions. An example of conduct resorting
under this heading is where X gives money to Y, an auctioneer, in order to
influence Y to conduct the bidding process at an auction in such a way that a
certain person is favoured or prejudiced.
(l) Corruption in respect of sporting events Section 15 creates a crime
limited to corruption committed in the context of sporting events. A person who
 CRIMES AGAINST PUBLIC WELFARE 417

accepts or gives money in order to undermine the integrity of any sporting event,
contravenes this section. The word “sporting event” is further defined in section
1. An example of this type of corruption is where X, who bets money on the out-
come of sporting events, gives money to Y, who is a sportsman or sportswoman
or a referee, in order to persuade Y to manipulate the game in such a way that
the match has the outcome which X wants it to have.
(m) Corruption in respect of gambling or games of chance Section 15 cre-
ates a crime limited to corruption committed in relation to gambling or games
of chance. An example of the commission of this type of corruption is where Y
is in charge of determining the winner of a gambling competition, and X gives
money to Y in order to persuade Y to manipulate the operation of the scheme in
such a way as to ensure that X is announced as the winner of the competition.
8 Failure to report corrupt conduct Section 34 creates an important crime
which consists in the failure by a person in a position of authority who knows
or ought reasonably to have known that certain crimes created in the Act have
been committed, to report the commission of such crimes to a police officer.
Subsection (4) gives a long list of persons who are regarded as people who hold
a position of authority. It includes any partner in a partnership and any person
who is responsible for the overall management and control of the business of an
employer. Because of the use of the words “who knows or ought reasonably to
have known” in the section, the form of culpability required for this crime is
either intention or negligence.

B EXTORTION
1 Definition The crime of extortion is committed when a person unlaw-
fully and intentionally obtains some advantage, which may be of either a
patrimonial or a non-patrimonial nature, from another by subjecting the
latter to pressure which induces her to hand over the advantage.48

2 Elements of the crime The elements of the crime are (a) the acquisition of
(b) a benefit (c) by applying pressure; (d ) a causal link (between the pressure
and the acquisition of the benefit); (e) unlawfulness and (f ) intention.
3 Origin, wrongdoer This crime is derived from the crime known in common
law as concussio or “knevelry”.49 It would appear that some of the old author-
ities were of the opinion that only a public official could commit the crime,50
but in G51 the Appellate Division held that anybody could commit it. X need
not even pretend to be a public official.52
________________________

48 The definition corresponds materially to that advanced in Hunt-Milton 681. See further the
dicta in J 1980 4 SA 113 (E) 116. S 1 of the General Law Amendment Act 139 of 1992
has resolved the formerly vexed question relating to whether or not the advantage should
be restricted to something of a patrimonial nature: the section expressly provides that any
advantage may be extorted, “whether or not such advantage was of a patrimonial nature”.
49 D 47 13; Voet 47 13 1; Matthaeus 47 7 1; Van der Linden 2 4 8; Van Leeuwen RHR 4 33 8;
Van der Keessel 47 13 1; Huber HR 6 17 7.
50 Van der Linden ibid; Van Leeuwen ibid; Van der Keessel ibid; Huber ibid.
51 1938 AD 246.
52 Richardson 1913 CPD 207 212–213; G supra 250.
418 CRIMINAL LAW

4 Pressure X must acquire the advantage by exerting some form of pressure

on Y to which the latter submits. This pressure takes the form of threats or
intimidation that some harm will befall Y. The threat may, for example, be one
of bodily harm, in which case extortion and robbery may overlap,53 or of defam-
ation,54 dismissal55 or – as frequently happens – of arrest or prosecution.56
The threat need not necessarily be that something positive will happen to Y.
Thus, to threaten to refuse to hand back Y’s property suffices.57 The threat may
be that some third party will suffer.58 It may furthermore be express or implied
by words or deeds.59 Where a police official arrests a person and suggests that
if the arrestee pays her (the official) money she may arrange to free her, there is
usually an implied threat that non-payment will result in further detention.60
5 The advantage Before 1989 there were conflicting decisions on the ques-
tion of whether the advantage should be restricted to something of a patrimonial
or financial nature.61 “Patrimonial” in this connection means “which can be con-
verted into or expressed in terms of money or economic value”. In 1989 the
Appellate Division held that the crime should indeed be restricted to instances
where the advantage was of a patrimonial nature.62 The legislature was (cor-
rectly, it is submitted) obviously not satisfied with this decision and in section 1
of the General Law Amendment Act 139 of 1992 enacted a provision which in
effect overturned the decision of the Appellate Division. The section provides
that at criminal proceedings at which an accused is charged with extortion it
shall, in respect of the object of the extortion, be sufficient to prove that any
advantage was extorted, whether or not such advantage was of a patrimonial
nature. An example of an advantage which is not of a patrimonial nature is
sexual gratification.63
Some decisions have held that X cannot extort an advantage which is due to
her.64 It is submitted that these decisions are wrong. The crime may be commit-
ted even if the advantage is “due to X”: by securing the advantage on the earlier

________________________

53 Ex parte Minister of Justice: in re R v Gesa; R v De Jongh 1959 1 SA 234 (A) 240E.

54 Ngqandu 1939 EDL 213.
55 Farndon 1937 EDL 180.
56 Lepheana 1956 1 SA 337 (A); Gokool 1965 3 SA 461 (N).
57 Mntoninthsi 1970 2 SA 443 (E) 444H (threat to withhold certain agricultural services).
58 Lepheana supra (threat of harm to Y’s wife).
59 K 1956 2 SA 217 (T); Gokool 1965 3 SA 461 (N) 464–465.
60 K supra 218E–F. In many cases where a demand is made by a public official known to Y
to have powers the exercise of which could harm her, an implied threat can be construed
from the mere demand and the relationship between the parties: Muller 1934 NPD 140;
Mtirara 1962 2 SA 266 (E). Contrast, however, Linda 1966 1 SA 41 (O), which is prob-
ably an incorrect decision.
61 In Potgieter 1977 3 SA 291 (O) and Von Molendorff 1987 1 SA 135 (T) it was held that
the advantage had to be of a proprietary nature, whereas in Munyani 1972 1 SA 411 (RA)
and J 1980 4 SA 113 (E) it was held that even non-proprietary prejudice suffices.
62 Ex parte Minister van Justisie: in re S v J en S v Von Molendorff 1989 4 SA 1028 (A).
63 J 1980 4 SA 113 (E).
64 Mahomed 1929 AD 58 67; Jansen 1959 1 SA 777 (C); Mntoninthsi 1970 2 SA 443 (E)
444H.
 CRIMES AGAINST PUBLIC WELFARE 419

occasion instead of waiting until a (possible) later occasion to obtain it, she
has secured an advantage. The law should not sanction payments induced by
threats.65
6 Acquisition of advantage The crime is not completed until the advantage
has been handed over to or acquired by X: if she is apprehended after the threat
or intimidation but before the acquisition of the advantage, she is guilty of
attempted extortion only.66
7 Causation Just as in robbery there must be a causal link between the vio-
lence and the obtaining of the property, so in extortion there must be a causal
link between the threats or intimidation and X’s acquisition of the advantage.67
If Y hands over the advantage not as a result of the threat or intimidation but
for some other reason, for example, because Y has arranged for X to be trapped
by the police, X commits attempted extortion only.68
8 Unlawfulness The threat or intimidation must have been exercised un-
lawfully. In order to determine this, one must look at the way in which the
threat was made and the results envisaged. Thus, if employees threaten their
employer that they will strike unless they receive a salary increase, the pressure
is not exercised unlawfully if the employees are lawfully entitled to strike in
terms the relevant rules of labour law. If employer X discovers that employee Y
has stolen money from her firm and threatens to lay a charge of theft with the
police unless Y returns the money, the pressure is not exercised unlawfully
because X is entitled by law to lay a charge of theft with the police. On the
other hand, although it is lawful for a police official to tell an arrested criminal
that she will have her prosecuted, it is unlawful for her to say that she will have
her prosecuted unless she pays her (the police official) an amount of money.69
9 Intention X must intend her words or conduct to operate as a threat,70 she
must intend Y to see it as a threat,71 she must intend to gain some advantage as
a result of the threat, and she must know that the threat is illegal.72 This latter
requirement means that X must know that she is not entitled to the advantage73
or that she has no authority to exact it74 (in cases where the assumption of
authority is inherent in the alleged threat). X’s motive is irrelevant.

________________________

65 For a similar view, see Hunt-Milton 693; Labuschagne 1985 De Jure 315 326; 1977 SACJ
194.
66 Lazarus 1922 CPD 293; Mtirara 1962 2 SA 266 (E); J supra.
67 Mahomed 1929 AD 58 67, 69–70; Farndon 1937 EDL 180 184–185.
68 Lazarus 1922 CPD 293; Lutge 1947 2 SA 490 (N).
69 N 1955 2 SA 647 (T) 656; Lepheana 1956 1 SA 337 (A); K 1956 2 SA 217 (T); Gokool
1965 3 SA 461 (N) 463H.
70 N supra 655.
71 Ngqandu 1939 EDL 213 215.
72 Mutimba 1944 AD 23 32; Mtirara 1962 2 SA 266 (E) 267E–F.
73 Geffen 1944 CPD 86 89–90; Zwakala 1966 2 PH H378 (T).
74 Farndon 1937 EDL 180 187; Mutimba supra 32.
420 CRIMINAL LAW

C DRUG OFFENCES
1 General The most important crimes relating to drugs are created in the
Drugs and Drugs Trafficking Act 140 of 199275 – hereinafter called “the Act”.
One of the purposes of this Act – which is also the only purpose of interest to
substantive criminal law – is “[t]o provide for the prohibition of the use or
possession of, or the dealing in, drugs”.76
2 Two most important crimes created in Act The two most important
crimes created in the Act (and the only two that will be discussed in this book)
are (a) dealing in drugs and (b) the use or possession of drugs. Dealing in drugs
is a more serious crime than possessing or using drugs. “Use or have in posses-
sion” is not treated in the Act as two separate crimes but as a single crime. The
crime consisting in the use or possession of a drug will be considered first.
3 Three categories of drugs The Act divides drugs into three categories,
namely:
(a) dependence-producing substances;
(b) dangerous dependence-producing substances; and
(c) undesirable dependence-producing substances.77
The drugs or substances falling under each of these categories are listed in great
detail in Schedule 2 of the Act. More severe punishment is prescribed for the
possession, use of or dealing in of the substances listed under (b) and (c) than
for the possession, use of or dealing in of the substances listed under (a). Among
the substances listed under (b) are coca leaf, morphine, opium and opiates.
Among the substances listed under (c) are cannabis (dagga), heroin and
Mandrax.
4 Unlawful possession or use of drug

(a) Definition Section 4 provides that no person shall use or have in her
possession (a) any dependence-producing substance or (b) any dangerous
or undesirable dependence-producing substance, unless . . . (there then
follows a number of what might be called “statutory grounds of justifi-
cation”, that is, circumstances in which the use or possession is justified,
such as where X is a patient who has acquired or bought the substance
from a medical practitioner or pharmacist).

Section 13 provides that any person who contravenes the provisions of section
4 (a) or (b) shall be guilty of an offence and section 17 lays down the penalties
for such offences.
The crime of possession of a drug is not unconstitutional. The fact that the
legislation does not provide for the lawful possession of dagga by people such
________________________

75 Before 1993, when this Act came into operation, the crimes were governed by the pro-
visions of the Abuse of Dependence-producing Substances and Rehabilitation Centres
Act 41 of 1971.
76 See the long title of the Act.
77 S 1 s v “drug”.
 CRIMES AGAINST PUBLIC WELFARE 421

as Rastafarians, who use it for religious or other purposes, does not mean that
the prohibition on the possession of drugs is unconstitutional.78
(b) Elements of crime
The elements of this crime are (a) the act, that is, possession or use; (b) a
drug; (c) unlawfulness and (d ) intention.
(c) The act – possession or use As far as the meaning of the word “use” is
concerned, the word is largely self-explanatory and can hardly be elucidated by
further definition. Clearly the smoking, inhalation, injection or ingestion of
drugs will amount to use of the drug.
We next consider the meaning of the term “possession”. There are two ways
in which the prosecution may prove that X possessed the drug. The first is by
proving possession in the ordinary juridical sense of the word. The second is by
relying on the extended meaning given in section 1 to the word “possess”.79
Each of these two ways of proving possession will now be examined.
(i) Possession in ordinary juridical sense The meaning of “possess” in legal
terminology has already been discussed in some detail above.80 What follows,
is a brief summary of the rules relating to the meaning of “possession”. Posses-
sion consists of two elements, namely a physical or corporeal element (corpus
or detentio) and a mental element (animus, that is, the intention of the posses-
sor).81 The physical element consists in an appropriate degree of physical control
over the thing. The precise degree of control required depends upon the nature
of the article and the way in which control is ordinarily exercised over such a
type of article. The control may be actual or constructive. Constructive control
means control through somebody else, such as a representative or servant.82
The animus element of possession relates to the intention with which some-
body exercises control over an article, and differs according to the type of
possession. “Possession” may have different meanings in different statutes and
in different branches of the law, and these differences are reflected in the differ-
ent meanings of the animus element in each particular type of possession. In
private law “possess” may be restricted to situations where X exercises control
over an article with the intention of keeping or disposing of it as if she were the
owner, as opposed to keeping it (temporarily or otherwise) on behalf of some-
body else. This is called possessio civilis.83 This is the narrow meaning of

________________________

78 Prince v President of the Law Society of the Cape of Good Hope 2002 1 SACR 432 (CC).
79 Previously there was a third way in which the prosecution could prove possession, namely
by relying on a presumption of possession created in s 20. This section provided that if it
is proved that any drug was found in the immediate vicinity of X, it shall be presumed
that she was found in possession of such drug, unless she proves the contrary. However,
this presumption is unconstitutional and no longer applicable – Mello 1999 2 SACR 255
(CC).
80 Supra II C.
81 Binns 1961 2 SA 104 (T) 107; Dladla 1965 3 SA 146 (T) 148G–H; R 1971 3 SA 798 (T)
800; Adams 1986 4 SA 882 (A) 890–891; Ndwalane 1995 2 SACR 697 (A); Mosoinyane
1998 1 SACR 583 (T) 591–592; Mello 1998 1 SACR 267 (T) 272c–g.
82 Cf Singiswa 1981 4 SA 403 (C).
83 R supra 801; Ndwalane supra 702.
422 CRIMINAL LAW

“possession”. There can be no doubt that if X’s possession of the substance

amounts to this form of possession, she is guilty of contravening the provision
presently under discussion (provided, of course, the other requirements are also
complied with).
(ii) The extended meaning of possession What is the position if X does not
exercise control over the drug in order to keep it for herself, but merely to look
after it (temporarily or otherwise) on behalf of somebody else? The answer to
this question is to be found in the extended meaning of the word “possession”
in section 1. This section provides that the word “possess” includes, in relation
to a drug, “to keep or to store the drug, or to have it under control or super-
vision”. Here the animus element is wider: all that is required is that X exercise
physical control over the thing. This type of possession is called possessio
naturalis.
Here it is not required that X exercise control over the thing with the inten-
tion of keeping or retaining it as an owner. She need not even intend to acquire
some benefit for herself by her control over the thing. It is sufficient if she
exercises control over it for the benefit of somebody else.84 Thus, even if X, in
keeping dagga, acts only as a custodian, messenger or servant for somebody
else, she nevertheless “possesses” it for the purposes of the Act. The use of the
word “includes” in the definition of “possess” makes it clear that this extended
meaning of the word does not exclude the narrow meaning of the word (posses-
sio civilis) explained above under (i), but complements it. Under this extended
definition of “possession” drugs may be possessed by more than one person
simultaneously, the one possessing it in the narrow sense of the word (possessio
civilis) and the other possessing it in the extended meaning of the word (posses-
sio naturalis).85
Attempt to possess is possible.86
(d) The drug The crime is committed if what is possessed or used is either a
dependence-producing substance, a dangerous dependence-producing substance
or an undesirable dependence-producing substance, as these terms are defined
in the Act.87
(e) Unlawfulness In terms of the general principles of criminal liability the
possession or use of the drug must be unlawful. The unlawfulness may be ex-
cluded, for example, by necessity.88
However, quite apart from grounds of justification flowing from general prin-
ciples, section 4 of the Act explicitly mentions a number of grounds of justifi-
cation for the purposes of this crime. Since they are set out in great detail in the
section, they will not be fully described here. The following are some examples
of these “statutory grounds of justification”: the possession or use is not un-
lawful if X is a patient who has acquired or bought the drug from a medical
practitioner, dentist, veterinarian or pharmacist, or if she is a medical practitioner,

________________________

84 Quinta 1984 3 SA 334 (C) 338.

85 Mkize 1975 1 SA 517 (A) 523E.
86 Ndlovu 1982 2 SA 202 (T) 206–207; Mlambo 1986 4 SA 34 (E) 41–42.
87 See supra par 3.
88 Cf Collett 1991 2 SA 854 (A).
 CRIMES AGAINST PUBLIC WELFARE 423

veterinarian, dentist, pharmacist or wholesale dealer in pharmaceutical products

who has acquired, bought or collected the drugs in accordance with the Medi-
cines and Related Substances Act 101 of 1965.
(f) Intention Culpability in the form of intention is required for this crime.89
Thus, the porter who has packets and suitcases under her control, but is un-
aware that there is dagga in one of the packets, cannot be found guilty of pos-
sessing the dagga.
(g) Punishment The punishment for using or possessing a dependence-
producing substance is any fine the court may deem fit to impose, or imprison-
ment for a period not exceeding five years, or both such fine and such im-
prisonment.90 The punishment for using or possessing a dangerous or undesirable
dependence-producing substance (such as dagga) is any fine the court may
deem fit to impose, or imprisonment for a period not exceeding 15 years, or
both such fine and such imprisonment.91
5 Dealing in drugs
(a) General The second important crime created in the Act is dealing in
drugs. This is a more serious crime than the use or possession of drugs, and
heavier sentences are prescribed for it. This is understandable: if there were no
dealer, there would be no drugs available to be used or possessed. Apart from
this, the dealer commits her prohibited acts for personal gain, whereas the addict
who merely uses and possesses the drug lacks this motive.

(b) Definition Section 5 provides that no person shall deal in (a) any
dependence-producing substance or (b) any dangerous or undesirable
dependence-producing substance, unless . . . (there then follows a number
of what might be called “statutory grounds of justification”, that is, circum-
stances in which acts which would otherwise amount to “dealing in” are
justified, such as where X has acquired the substance as a medical prac-
titioner and administers it to a patient or is a pharmacist or an employee of
a pharmacist).

Section 13 provides that any person who contravenes section 5(a) or (b) com-
mits an offence and section 17 lays down the penalties for the offence.
(c) Elements of crime The elements of the crime are (i) the act, that is, deal-
ing in; (ii) a drug; (iii) unlawfulness and (iv) intention.
(d) The act – dealing in There is more than one way in which the pros-
ecution may prove that X dealt in drugs. The first is by proving that there was a
________________________

89 Blauw 1972 3 SA 83 (C) 84; Majola 1975 2 SA 727 (A) 736; Lombard 1980 3 SA 948
(T); Gentle 1983 3 SA 45 (N) 46H; Collett 1991 2 SA 854 (A).
90 S 17(b) read with s 13(c). If the provisions of s 1(a) of the Adjustment of Fines Act 101
of 1991 are taken into consideration, the maximum fine is 5 × R120 000 = R600 000 in the
case of a Magistrate’s Court which is not a Regional Court, and in the case of a Regional
Court R600 000 × 5 = R3 million.
91 S 17(d) read with s 13(d). If the provisions of s 1(a) of the Adjustment of Fines Act 101
of 1991 are taken into consideration, the maximum fine is 15 × R120 000 = R5.4 million
in the case of a Magistrate’s Court which is not a Regional Court, and in the case of a
Regional Court 15 × R600 000 = R9 million.
424 CRIMINAL LAW

“dealing in” in the ordinary, conventional sense of the word. The second is by
relying on the extended meaning of the expression “deal in” given in the Act.
Previously there was a third way of proving that X dealt in drugs, namely by
relying on one or more of a number of presumptions of “dealing in” created in
the Act. However, these presumptions are incompatible with the Constitution
and no longer apply.92
Each of these ways of proving “dealing in” will now be explained.
(i) Conventional meaning of “dealing in” The most obvious meaning of
“deal in” is to buy and sell, but it may also have the wider meaning of “doing
business” or “performing a transaction of a commercial nature”.93 If a person,
on a charge of dealing in dagga, is found in possession of a large quantity of
dagga and is unable to furnish a reasonable explanation of such possession, the
inference can be drawn that she was indeed dealing in such dagga. This follows
from the application of basic legal principles and common sense, and does not
involve the application of any presumption of dealing.94
(ii) Extended meaning of “deal in” given in Act The expression “deal in” in
relation to a drug is defined in section 1 as including “any act in connection
with the transhipment, importation, cultivation, collection, manufacture, supply,
prescription, administration, sale, transmission or exportation of the drug”.95
There have been conflicting decisions about the meaning of “supply”, but in
Solomon96 the Appellate Division resolved most of the uncertainties. The court
held that the legislature intended the word “supply” to cover only activities
relating to the furnishing of drugs (“verskaffingsaktiwiteite”) and not to their
acquisition (“verkrygingsaktiwiteite”). This means that an agent or intermedi-
ary who procures drugs for a buyer at the latter’s request and for the latter’s
own use but who is apprehended before she delivers them to the buyer, is not
guilty of dealing in such drugs but only of possessing them.97
The word “manufacture”, which occurs in the definition of “deal in”, is fur-
ther defined in section 1 as “the preparing, extraction or producing of the sub-
stance” and the word “sell”, which is linked to “sale” in the definition of “deal
________________________

92 Bhulwana 1995 2 SACR 748 (CC), which declared the presumption in s 21(1)(a)(i)
(possession of more than 115 gram dagga) unconstitutional; Julies 1996 2 SACR 108 (CC),
which declared the presumption in s 21(1)(a)(iii) (possession of undesirable dependence-
producing substance) unconstitutional; Ntsele 1997 2 SACR 740 (CC), which declared
the presumption in s 21(1)(b) (being the owner etc of cultivated land on which dagga
plants were found) unconstitutional; Mjezu 1996 2 SACR 594 (NC), which declared the
presumptions in s 21(1)(c) and (d) unconstitutional. As far as the remaining presumption
in s 21(1)(a)(ii) (drug found in or near school) is concerned, it is more than doubtful that
it could still be constitutional.
93 Oberholzer 1941 OPD 48; Congo 1962 3 SA 988 (N).
94 Mathe 1998 2 SACR 225 (O) 229.
95 The definition corresponds to the definition of “deal in” in s 1 of the previous Act 41 of
1971, although the sequence of the terms is not the same.
96 1986 3 SA 705 (A), applied in Jackson 1990 2 SACR 505 (E).
97 In Beja 1978 1 SA 395 (E) it was held that there is no dealing in dagga if X and Y smoke
a dagga pipe together and the one, after smoking it, hands it to the other. If the owner of
dagga “delivers” it to another merely to keep it in custody for her, he does not “deal in”
dagga – Walker 1978 4 SA 588 (C). Mere possession of dagga in order to barter it for
something else does not amount to “dealing in” – Bodigelo 1982 3 SA 568 (NC).
 CRIMES AGAINST PUBLIC WELFARE 425

in”, is further defined in section 1 as including “to offer, advertise, possess or

expose the drug for sale, to dispose of it, whether for consideration or other-
wise, or to exchange it”. A person who purchases dagga for her own use from
another does not, without more ado, perform an act in connection with the
“supply” or “sale” of dagga, and is therefore not guilty of dealing in dagga but
only of possessing it.98 “Cultivate” means to further the growth of a plant, to
stimulate or promote its growth.99
(e) The drug The crime is committed if what is “dealt in” is either a
dependence-producing substance or a dangerous or undesirable dependence-
producing substance, as these terms are defined in the Act, and according to the
definition of the crime X is charged with.
(f ) Unlawfulness According to the general principles of criminal liability
the act of “dealing in” must be unlawful, that is, not capable of being justified.
The unlawfulness may be excluded by, for example, necessity in the form of
coercion.
However, quite apart from the grounds of justification flowing from the gen-
eral principles, section 5 of the Act explicitly mentions a number of grounds of
justification for the purposes of this crime. Since they are set out in great detail
in the section, they will not be fully set out here. The following are some
examples of these “statutory grounds of justification”: X’s act is not unlawful if
she has acquired or bought the particular substance for medicinal purposes from
a medical practitioner, veterinarian or dentist or from a pharmacist in terms of a
written prescription of such medical practitioner, veterinarian or dentist and if
she (X) administers it to a patient or animal. Nor does she act unlawfully if she
is a medical practitioner, dentist or pharmacist who prescribes, administers,
acquires, imports, or sells the substance in accordance with the requirements of
the Medicines and Related Substances Control Act 101 of 1965.
(g) Intention Culpability in the form of intention is an element of this
crime.100 X must be aware that the substance is a substance as described in the
Act, that her conduct amounts to “dealing in” the substance (as this term is
defined in the Act) and that her conduct is unlawful.
(h) Punishment The punishment for dealing in a dependence-producing
substance is any fine the court may deem fit to impose or imprisonment for a
period not exceeding 10 years, or both such fine and such imprisonment.101 The
punishment for dealing in either a dangerous or an undesirable dependence-
producing drug (which includes dagga) is imprisonment for a period not
________________________

98 Bushinelo 1982 3 SA 456 (T).

99 Guess 1976 4 SA 715 (A). It is submitted that merely to water a single dagga plant (with
the necessary intention) amounts to “dealing in” it – Kgupane 1975 2 SA 73 (T); Snyman
1975 SALJ 372. Contra Van der Merwe 1974 4 SA 310 (E) and Van Zyl 1975 2 SA 489
(N). It is submitted that the latter two judgments are incorrect. This was also the opinion
of the court in Danster 1976 3 SA 668 (SWA) 671.
100 Job 1976 1 SA 207 (NC); Ngwenya 1979 2 SA 96 (A) 100; Hlomza 1983 4 SA 142 (E);
Jacobs 1989 1 SA 652 (A) 656B.
101 S 17(c). If the provisions of s 1(a) of the Adjustment of Fines Act 101 of 1991 are taken
into consideration, the maximum fine is 10 × R120 000 = R1.2 million in the case of a
Magistrate’s Court which is not a Regional Court, and in the case of a Regional Court
10 × R600 000 = R6 million.
426 CRIMINAL LAW

exceeding 25 years, or both such imprisonment and such fine as the court may
deem fit to impose.102
6 Certain other provisions in Act There is not enough space in this book to
set out and discuss the further provisions in the Act – including further crimes
created in the Act. It suffices merely to draw attention to some of the following
further crimes created in the Act. It is a crime to manufacture any scheduled
substance (that is, a substance included in Part I or II of Schedule I) or supply it
to any other person, knowing or suspecting that any such substance is to be
used in or for the unlawful manufacture of any drug.103 It is also a crime for any
person to acquire any property, knowing that such property is the proceeds of a
drug offence or the conversion of property derived as a result of the commis-
sion of a drug offence.104 The Act further provides for forfeiture orders to be
issued by a court when convicting an accused of a drug offence105 and also con-
tains an elaborate set of provisions for the confiscation of property derived from
dealing in drugs or the laundering of the proceeds of dealing in drugs.106

D UNLAWFUL POSSESSION OF FIREARMS

OR AMMUNITION
1 General The Firearms Control Act 60 of 2000 (hereafter called “the Act”)
regulates the control of firearms and ammunition and related matters.107 The
Act creates a large number of crimes relating to firearms. A discussion of all of
them falls outside the scope of this book. The only crimes that will be discussed
here are (a) the unlawful possession of a firearm; (b) the unlawful possession of
a prohibited firearm (a crime which is closely related to the previous one); and
(c) the unlawful possession of ammunition.
2 Unlawful possession of firearm

(a) Definition Section 3 provides that no person may possess a firearm

unless she holds a licence, permit or authorisation issued in terms of the
Act for that firearm. Nor may any person possess a muzzle loading firearm
unless she has been issued with the relevant competency certificate.

Section 120(1)(a) makes it clear that a person is guilty of a crime if she

contravenes section 3, and section 121, read with Schedule 4, sets out the
punishment for this crime.108
________________________

102 S 17(e). If the provisions of s 1(a) of the Adjustment of Fines Act 101 of 1991 are taken
into consideration, the maximum fine is 25 × R120 000 = R3 million in the case of a
Magistrate’s Court which is not a Regional Court, and in the case of a Regional Court
25 × R600 000 = R15 million.
103 S 3 read with the definition of “scheduled substance” in s 1, as well as s 13(b).
104 S 6 read with s 14(a).
105 S 25.
106 See ch 5 of the Act, and the discussion of these provisions in Milton and Cowling F3 –
103–112.
107 This Act repeals and replaces the Arms and Ammunition Act 75 of 1969.
108 The forerunners of the present sections creating the crime can be found in s 2, read with
s 39(1)(h), of the Arms and Ammunition Act 75 of 1969. For a discussion of the crime
in terms of the previous legislation, see Milton and Cowling B1.
 CRIMES AGAINST PUBLIC WELFARE 427

(b) Elements of crime The elements of the crime are (i) the possession of (ii)
a firearm, (iii) unlawfulness and (iv) culpability.
(c) Possession The meaning of the word “possession” as used in the law has
already been discussed in detail above,109 and the discussion which follows
should be read together with that discussion. The word “possess” is not defined
in the Act. In the previous Arms and Ammunition Act 75 of 1969, which was
repealed and replaced by the present Act, the word “possession” was defined as
including custody.110 Accordingly, under the previous Act, “possession” refer-
red to physical control over the arm with the intention of possessing it either as
if the possessor were the owner (possessio civilis) or merely to keep or guard it
on behalf of, or for the benefit of, somebody else (possessio naturalis).111
Can one, in the absence of a provision in the present Act stating that “posses-
sion” includes “custody” (or similar words or expressions indicating that
“possession” includes possessio naturalis), assume that the meaning which the
term had in the previous Act still applies to the term as used in the present Act?
It would be extraordinary if the word “possess” in the present Act were to be
construed narrowly as meaning only possessio civilis. Considering the purpose
of the Act as set out in the Preamble as well as section 2, it is submitted that
there can be no doubt that the legislature intended that even possession by a
person who merely keeps or guards the firearm temporarily for somebody else
(possessio naturalis) should also be punishable.112
If a number of people commit a robbery with a common purpose to commit
robbery but only one of them has the detention of the firearm used, proving that
the other participants in the robbery also unlawfully possessed a firearm may be
difficult. The mere fact that they commit a robbery with a common purpose
using a firearm but that only one of them has physical detention, does not
necessarily mean that all of them possess the firearm illegally. Such a deduction
can only be made if the court finds that the robber who has the detention
intended to possess it not only for himself but also on behalf of the other(s), and
that the other(s) had the intention that the robber having the detention should
exercise the physical detention on their behalf. Such a conclusion cannot auto-
matically be made from the mere fact that the participants acted with a common
purpose, because such common purpose may equally exist in a situation in
which the robber having the detention of the firearm intended to possess it for
himself alone.113
(d) Firearm Section 1 gives a long, technical definition of the word “fire-
arm”. The section defines it as any:
________________________

109 Supra II C.
110 S 1(1) of Act 75 of 1969; Motsema 2012 2 SACR 96 (SGJ) par 16.
111 Dlepu 1978 3 SA 106 (T); Ndwalane 1995 2 SACR 697 (A) 702.
112 See eg the words “[t]he purpose of this Act is to . . . prevent the proliferation of illegally
possessed firearms and . . . to prevent crime involving the use of firearms” in s 2. It is
difficult to see how this purpose can be achieved if a person who keeps or guards a fire-
arm only temporarily for somebody else could not be convicted of the unlawful posses-
sion of a firearm.
113 Nkosi 1998 1 SACR 284 (W); Motsema 2012 2 SACR 96 (SGJ); Kwanda 2013 1
SACR 137 (SCA).
428 CRIMINAL LAW

(i) device manufactured or designed to propel a bullet or projectile through

a barrel or cylinder by means of burning propellant, at a muzzle energy
exceeding 8 joules (6 ft-lbs);
(ii) device manufactured or designed to discharge rim-fire, centre-fire or pin-
fire ammunition;
(iii) device which is not at the time capable of discharging any bullet or pro-
jectile, but which can be readily altered to be a firearm within the meaning
of paragraph (a) or (b);
(iv) device manufactured to discharge a bullet or any other projectile of a cali-
bre of 5.6 mm (.22 calibre) or higher at a muzzle energy of more than
8 joules (6ft-lbs), by means of compressed gas and not by means of burn-
ing propellant; or
(v) barrel, frame or receiver of a device referred to in paragraphs (a), (b), (c)
or (d ), but does not include any device contemplated in section 5. This
latter section contains a list of devices which are not regarded as firearms.
Included in this list are an antique firearm and an airgun.
Section 5(1) specifically states that a number of devices listed in the sub-
section are not regarded as firearms. The list includes an antique firearm, an
airgun, a paintball gun, a flare gun, and certain other technically defined mech-
anisms such as “any explosive powered tool manufactured specifically for use
in industrial application, including line-throwing guns and impex-type building
pistols”.
The expression “muzzle loading firearm” is also defined in section 1, but will
not be set out here due to the length of the definition.114
(e) Unlawfulness The possession must be unlawful, that is, not covered by a
ground of justification such as necessity. As already stated above, the crime is,
in terms of section 3, not committed by somebody who holds a licence, permit
or authorisation issued in terms of the Act for the firearm. Official institutions,
such as the South African National Defence Force, the South African Police
Service and the Department of Correctional Services are exempt from the pro-
hibition of possession of firearms.115
( f ) Culpability The legislature does not specify whether intention or neg-
ligence is required for liability. There is certainly no reason to believe that no
culpability is required – in other words that this is a strict liability offence. If X
had intention she would certainly be guilty, but the question is whether she can
also be convicted if the form of culpability proved against her is not intention,
but merely negligence. It is submitted that culpability in the form of negligence
suffices for a conviction. The reason for this is that it is well known that the
unlawful possession of firearms is one of the greatest evils besetting South Afri-
can society and that the legislature’s intention was clearly to spread the net
against unlawful possession of firearms as widely as possible.116 Accordingly X
________________________

114 In the light of the increased technical nature of the various definitions of a “firearm” in
the Act, it may, in borderline cases, be necessary for the prosecution to lead expert evi-
dence on the nature of the firearm in question – Filani 2012 1 SACR 508 (ECG).
115 S 96(1), read with s 95.
116 Mnisi 1996 1 SACR 496 (T); Sotsu 2001 1 SACR 428 (Tk) 431c–d. The submission in
the text is strengthened by the following considerations: the wording of the Preamble of
[continued]
 CRIMES AGAINST PUBLIC WELFARE 429

ought not without more ado to succeed with a defence that she was temporarily
keeping the firearm for somebody else and that she believed that this other per-
son had a licence to possess the firearm, whereas such other person in fact had
no such licence. She would succeed with such a defence only if the court can
find that in the particular circumstances X’s belief was reasonable.117
Intention to possess a firearm includes an awareness on the part of X that she
possesses the firearm unlawfully. If she bona fide believes that her possession
is lawful, she lacks awareness of unlawfulness and intention, even if her belief
proves to be mistaken.118
(g) Punishment According to section 121 read with Schedule 4, the punish-
ment for the crime is a fine or imprisonment for a period not exceeding 15 years.
If the provisions of section 1(a) of the Adjustment of Fines Act 101 of 1991 are
taken into consideration, the maximum fine is 15 × R120 000, that is, R1.8 mil-
lion in the case of a Magistrate’s Court which is not a Regional Court, and in
the case of a Regional Court 15 × R600 000, that is R9 million. If the pro-
visions of section 1(b) of the latter Act are taken into account, a fine as well as
imprisonment may be imposed.
3 Unlawful possession of a prohibited firearm
(a) Definition Section 4(1) provides that certain listed firearms and devices
are prohibited firearms and may not be possessed or licensed in terms of the
Act. Section 120(1)(a) makes it clear that a person is guilty of a crime if she
contravenes section 4, and section 121, read with Schedule 4, sets out the punish-
ment for this crime.
(b) General remarks on this crime The crime created in section 4(1) re-
sembles the crime created in section 3 and discussed immediately above, but
differs from that crime in that the object of the possession is not a “firearm” as
set out in the discussion of the above crime, but a “prohibited firearm”. The Act
draws a distinction between a “firearm” and a “prohibited firearm”. Whereas a
firearm is a lethal weapon, the arms and devices falling under the heading “pro-
hibited firearm” are even more ominous and destructive, amounting to what may
be described as weapons of war, such as a cannon and a rocket launcher. Where-
as a firearm can be licensed, a prohibited firearm cannot (barring a few excep-
tions) be licensed. A heavier sentence is prescribed for the crime of possessing
a prohibited firearm than for the possession of a firearm which is not a prohibited
firearm (the maximum period of imprisonment is 25 years instead of 15 years).
(c) Elements of crime The elements of the crime are (i) the possession of (ii)
a prohibited firearm, (iii) unlawfulness and (iv) culpability. The contents of
elements (i) and (iv) are the same as in the crime of unlawfully possessing a
________________________

the Act, and especially the third statement in the Preamble, which mentions that “the in-
creased availability and abuse of firearms . . . has contributed significantly to the high
levels of violent crime in our society”; the purposes of the Act as explicitly mentioned
in s 2, especially par (b), which states that the purpose of the Act is to “prevent the pro-
liferation of illegally possessed firearms and . . . to prevent crime involving the use of
firearms”; the severe maximum sentence of 15 years (s 121, read with Sch 4), which is
five times higher than the maximum sentence prescribed in the present Act’s forerunner!
117 Indirect authority for this view can be found in Mukwevho 2010 1 SACR 349 (SDT)
357f–h.
118 Majikazana 2012 2 SACR 107 (SCA) par 23.
430 CRIMINAL LAW

firearm, discussed above. The only elements which differ from the correspond-
ing ones in the previously discussed crime are element (ii), that is, the element
relating to the object of the possession, namely a “prohibited firearm”, and
element (iii), which relates to the unlawfulness of the possession.
(d) Prohibited firearm Section 4(1) contains a long list of firearms and
devices which are prohibited firearms. Without giving a complete list of them
all, the following are some of the devices contained in this list: any fully auto-
matic firearm; any gun, cannon, mortar or launcher manufactured to fire a rocket,
grenade or bomb; any projectile or rocket manufactured to be discharged from
a cannon, recoilless gun or mortar, or rocket launcher.
(e) Unlawfulness The possession must be unlawful, that is, not covered by a
ground of justification such as necessity. Section 4(1) provides that possession
of a prohibited firearm may be lawful in the circumstances set out in sections
17, 18(5), 19 and 20(1) (b). Sections 17 and 18(5) refer to firearms and ammu-
nition in private collections, section 19 refers to such articles in public collec-
tions and section 20(1)(b) to firearms used for use in theatrical, film or television
productions.
( f ) Punishment According to section 121 read with Schedule 4, the punish-
ment for the crime is a fine or imprisonment for a period not exceeding 25 years.
If the provisions of section 1(a) of the Adjustment of Fines Act 101 of 1991 are
taken into consideration, the maximum fine is 25 × R120 000, that is, R3 mil-
lion in the case of a Magistrate’s Court which is not a Regional Court, and in the
case of a Regional Court 25 × R600 000, that is R15 million.If the provisions of
section 1(b) of the latter Act are taken into account, a fine as well as imprison-
ment may be imposed.
4 Unlawful possession of ammunition

Section 90 provides that no person may possess any ammunition unless she –
(a) holds a licence in respect of a firearm capable of discharging that
ammunition;
(b) holds a permit to possess ammunition;
(c) holds a dealer’s licence, manufacturer’s licence, gunsmith’s licence,
import, export or in-transit permit or transporter’s permit issued in
terms of this Act; or
(d ) is otherwise authorised to do so.

Section 91(1) provides that the holder of a licence to possess a firearm may not
possess more than 200 cartridges for each firearm in respect of which she holds
a licence. However, according to subsection (2), this limitation does not apply
to (a) a dedicated hunter or dedicated sports person who holds a licence, or to
(b) the holder of a licence to possess a firearm in respect of ammunition bought
and discharged at an accredited shooting range.
These provisions do not apply to official institutions such as the South Afri-
can National Defence Force, the South African Police Service, and the Depart-
ment of Correctional Services.119
________________________

119 Ss 95 and 96.

 CRIMES AGAINST PUBLIC WELFARE 431

Section 1 defines “ammunition” as “a primer or complete cartridge”, and the

word “cartridge” in turn is defined in the section to mean “a complete object
consisting of a cartridge case, primer, propellant and bullet”.
The punishment for the unlawful possession of ammunition is a fine or im-
prisonment for a period not exceeding 15 years. If the provisions of section 1(a)
of the Adjustment of Fines Act 101 of 1991 are taken into consideration, the
maximum fine is 15 × R120 000, that is, R1.8 million in the case of a Magis-
trate’s Court which is not a Regional Court, and in the case of a Regional Court
15 × R600 000, that is R9 million.If the provisions of section 1(b) of the latter
Act are taken into account, a fine as well as imprisonment may be imposed.
5 Certain other crimes created in Act Among the many further crimes
relating to firearms and ammunition created in the Act are (briefly defined) the
following:
(i) to be aware that somebody else possesses a firearm illegally and to fail
to report this to the police;120
(ii) to cause bodily injury to a person or damage to property by negligently
using a firearm;121
(iii) to discharge a firearm in a manner likely to injure or endanger the
safety or property of somebody else;122
(iv) to have control of a loaded firearm in circumstances where it creates a
risk to the safety or property of another and not to take reasonable pre-
cautions to avoid the danger;123
(v) to handle a firearm while under the influence of a substance which has
an intoxicating or a narcotic effect;124
(vi) to give control of a firearm to a person whom she knows, or ought to
have known, to be mentally ill, or to be under the influence of a sub-
stance which has an intoxicating or a narcotic effect;125
(vii) to point a firearm at another person126 (this crime is discussed separately
below);127
(viii) to discharge a firearm in a built up area or public place;128
(ix) to fail to lock away a firearm which a person has in her possession in a
prescribed safe, strong-room or device for the safe-keeping;129 and
(x) to lose a firearm owing to a failure to lock it away in a safe, strong-room
or safekeeping device, or owing to failure to take reasonable steps to
prevent its loss or owing to failure to keep the keys to the safe, strong-
room or device in safe custody.130
________________________

120 S 120(2)(a).
121 S 120(3)(a).
122 S 120(3)(b).
123 S 120(3)(c).
124 S 120(4).
125 S 120(5).
126 S 120(6).
127 Infra XV C.
128 S 120(7).
129 S 120(8)(a).
130 S 120(8)(b).
432 CRIMINAL LAW

E CONCEALMENT OF BIRTHS
1 Contents of crime This crime was unknown in our common law. In South
Africa it has been a crime since 1845.131 It is presently governed by the pro-
visions of section 113 of the General Law Amendment Act 46 of 1935.

Subsection (1) provides that any person who, without a lawful burial order,
disposes of the body of a newly born child with intent to conceal the fact of
its birth, whether the child died before, during or after birth, is guilty of a
crime.

It is not a crime against life, for it is applicable only if the child is already dead.132
If a living child is exposed or simply left to her fate X may be guilty of the
common-law crime of “exposing an infant” (crimen expositionis infantis).133
If a living child is left to her fate and she dies X may, of course, be guilty of
murder or culpable homicide, depending on whether the prosecution can prove
that X caused the death intentionally or negligently. The present crime never-
theless stands in a particular relationship to the crimes against life, because a
conviction of this crime is a competent verdict on a charge of murder or culp-
able homicide in terms of sections 258 and 259 of the Criminal Procedure Act.
The person committing the crime need not necessarily be the mother of the
child. It may be any person. The words “disposes of ” imply an act committed
with the intention of permanently concealing the child’s corpse. If it is left at a
place where, to X’s knowledge, it will be found by other people there is no “dis-
posal of ” the corpse.134
The expression “the body of a child” is not defined in the act. The question
arises at what stage the foetus may be regarded as a “child”. In Matthews135 it
was held that a foetus qualifies as a “child” for the purposes of the Act only if it
has reached a stage of development “sufficient to have rendered its separate
existence apart from its mother a reasonable probability”.136
The disposal of the child’s body must be accompanied by a certain intention,
namely to conceal the fact of its birth. If this intention is present the intention re-
lating to the act, namely “to dispose of the body of the child”, will also be present.
2 Evidential provisions The provisions of subsections (2) and (3) are of evi-
dential importance only. Subsection (2) provides that whenever a person disposes
________________________

131 When s 1 of Ord 10 of 1845 (C) made it criminal.

132 Oliphant 1950 1 SA 48 (O) 51; Maleka 1965 2 SA 774 (T).
133 This crime is discussed infra XIV D.
134 Dema 1947 1 SA 599 (E) 600. In Smith 1918 CPD 260 X was charged under the fore-
runner of the present Act. It was held that transporting a corpse in a suitcase from one
place to another amounted to “disposal” of the corpse. Contrast, however, Molefe 2012
2 SACR 574 (GNP) where X had merely lied to a sister at a clinic that she had given
birth. This conduct was held not to amount to a “disposal” of the body of a child.
135 1943 CPD 8.
136 In Manngo 1980 3 SA 1041 (V) the fetus was only three months old, and the court held
that the crime cannot be committed in respect of it, because “the offence cannot be
committed unless the child has arrived at that stage of maturity at the time of birth that
it might have been born a living child”.
 CRIMES AGAINST PUBLIC WELFARE 433

of the body of any child which was recently born, other than under a lawful
burial order, she will be deemed to have disposed of the body with intent to
conceal the fact of the child’s birth, unless it is proved (which means “unless
the accused proves”) that she had no such intent. (This shifting of the onus of
proof may be unconstitutional.) Subsection (3) provides that a person may be
convicted in terms of subsection (1) although it has not been proved that the
child in question died before its body was disposed of. This subsection does not
mean that the crime can be committed in respect of a living child too. It means
only that it is not necessary for the state to prove that the child died before it
was concealed.137
3 Punishment The punishment is a fine or imprisonment for a period not
exceeding three years. If the provisions of section 1(a) of the Adjustment of
Fines Act 101 of 1991 are taken into account, the maximum fine is R360 000
(3 × R120 000). If the provisions of section 1(b) of the latter Act are taken into
account, a fine as well as imprisonment may be imposed.

F PUBLIC INDECENCY

1 Definition Public indecency consists in unlawfully, intentionally and

publicly engaging in conduct which tends to deprave the morals of others,
or which outrages the public’s sense of decency.138

2 Elements of crime The elements of this crime are the following: (a) con-
duct (b) in public (c) which tends to deprave the morals of others or which out-
rages the public’s sense of decency (d) unlawfulness and (e) intention.
3 Origin The crime was unknown in Roman and Roman-Dutch law, though
some forms of what is today known as public indecency may have been pun-
ished as other crimes, such as the vague crimina extraordinaria.139 The crime is
a creation of the courts in the Cape Colony during the previous century, under
the influence of English law. The most influential decision in this regard was
Marais,140 decided in 1888.
4 Constitutional dimensions of crime Section 16(1) of the Constitution pro-
vides that everyone has the right to freedom of expression, which includes inter
alia freedom of artistic creativity. The recognition of this right may result in cer-
tain types of conduct being no longer punishable which, before the coming into
operation of the Constitution, were punishable as public indecency. Examples of
such types of conduct that come to mind are females appearing topless on public
beaches and a striptease exhibition in a nightclub.
________________________

137 Oliphant supra 51.

138 This definition is based on that in Hunt-Milton 271, which was followed in F 1977 2
SA 1 (T) 4. That an act which outrages the public’s sense of decency or propriety may
also be classed as indecent appears from B and C 1949 2 SA 582 (T); B and C 1949 1
PH H74 (T), and F supra 4.
139 In Marais (1888) 6 SC 367 370 and Hardy (1905) 26 NLR 35 the courts sought to base
the existence of the crime on the fact that it was analogous to some of the crimina extra-
ordinaria mentioned by Voet 47 11.
140 Supra.
434 CRIMINAL LAW

Another ground upon which the constitutionality of the crime, or aspects

thereof, may perhaps be challenged, is the vagueness of the expressions “which
tends to deprave the morals of others” and “which outrages the public’s sense
of decency” in the definition of the crime. Because of the vagueness of these
expressions, the definition or part thereof may possibly be incompatible with
the ius certum rule in the principle of legality.141
On the other hand, the infringement of rights such as the right to free ex-
pression may be justified in the light of the public’s interest not to be confronted
by displays such as nudism, the exposure of people’s genitalia, or sexual inter-
course in public places to which the public have a right of access. The dis-
cussion of the crime which follows is based on the assumption that the crime is
constitutional.
5 Indecent conduct Although any form of indecency in public may consti-
tute the crime, the most common ways in which it is committed are by an im-
proper exposure of the body142 and by sexual intercourse in public.143 Conduct
is regarded as indecent if it has the tendency to deprave the morals of others144
or if it outrages the public’s sense of decency and propriety.145 Whether the
conduct in fact depraves the morals of others is immaterial. No actual depra-
vation is required, but only that the act should have an objective tendency to
deprave.146 In applying the test a court should have regard to the effect of the
conduct at that particular time and place on the average reasonable member of
society who is “neither a prude nor a libertine”.147
6 Conduct in public One of the most important elements of the crime is the
requirement that the conduct take place “in public”.148 This does not mean that
the conduct should necessarily take place in a public place, or in a place to
which the public normally has access (although in such cases the element of
publicity is satisfied).149 The crime is also committed if the conduct takes place
in a private place, such as a flat or a private dwelling, in such circumstances
that it may be perceived by members of the public from either a public place,
such as a road,150 or even from some other private place, such as another flat or
dwelling.151 In the latter case the people who may see X must, as far as X is
concerned, be ordinary members of the public.152 The fact that the conduct is
not actually perceived by more than one person does not affect X’s liability.153
________________________

141 Supra I F 9.
142 As in Marais supra and B 1955 3 SA 494 (D).
143 As in Arends 1946 NPD 441; B and C 1949 2 SA 582 (T).
144 Marais supra 370; Meinert 1932 SWA 56 60; W 1953 3 SA 52 (SWA) 53.
145 B and C 1949 2 SA 582 (T); F 1977 2 SA 1 (T) 4.
146 Publications Control Board v William Heinemann Ltd 1965 4 SA 137 (A) 150; F supra 7.
147 This expression was used in Publications Control Board v William Heinemann Ltd supra
150. See also F supra 8; Buren Uitgewers (Edms) Bpk v Raad van Beheer oor Publika-
sies 1975 1 SA 379 (C). Cf also the discussion in L 1991 2 SACR 329 (C).
148 On this requirement, see Arends supra 443; B supra 497.
149 Arends supra 443; Cooke 1939 TPD 69 73.
150 Marais supra 370; Manderson 1909 TS 1140 1142.
151 B 1955 3 SA 494 (D) 497F.
152 B supra.
153 Marais supra 371.
 CRIMES AGAINST PUBLIC WELFARE 435

All that is required is a reasonable possibility that members of the public may
see, hear or otherwise perceive her conduct.154
7 Unlawfulness An otherwise unlawful exposure of the body may be justi-
fied by, for example, necessity (as where X is forced to rush naked into a
crowded street because of a fire in her house).
8 Intention The crime can only be committed intentionally,155 and the inten-
tion of X must refer to all the elements of the crime. This implies that X must
appreciate that her conduct is taking place in public,156 and that her behaviour
may tend to deprave the morals of others or outrage the public’s sense of
decency.

G VIOLATING A GRAVE157

1 Definition Violating a grave consists in unlawfully and intentionally

damaging a human grave.

2 Origin The crime is derived from the crime of sepulchri violatio in Roman
law, by which the violation or desecration of res religiosae (“religious objects”)
was punished.158 In modern South African law there are no longer res religi-
osae,159 and the reason for punishing the violation of a grave today is the
affront to the family or friends of the deceased or the community’s feelings of
decency.160
3 Overlapping with other crimes The crime may overlap with malicious
injury to property or theft. It will overlap with theft only if parts of the tomb-
stone or grave are removed, not if the corpse is removed: theft of a corpse is not
possible, because a corpse is a res extra commercium (an object which cannot
be commercially disposed of).161
4 The prohibited act The crime is committed not only when the coffin or
human remains within a grave are disturbed,162 but also when there is any de-
struction of or injury to a tombstone, monument or other part of a grave above
________________________

154 B supra 497; Manderson supra 1143.

155 B 1955 3 SA 494 (D) 497.
156 Arends 1946 NPD 441 443–444.
157 See generally De Vos 1952 SALJ 296 ff; Labuschagne 1991 De Jure 141; Hoctor and
Knoetze 2001 Obiter 171; Christison and Hoctor 2007 Obiter 23.
158 D 47 12 7, 47 12 3 7, 47 12 11. See generally also D 47 12 3 and Inst 2 1 9. The Roman-
Dutch writers no longer regarded a tomb as a res religiosa (Van Leeuwen RHR 2 1 9;
Van Leeuwen Cens For 1 2 1 14; Huber HR 2 1 28), yet still regarded the violation of a
grave as a crime (Matthaeus 47 6 1, 2; Van Leeuwen Cens For 1 5 5 2; Voet 47 12;
Moorman 1 7 9; Damhouder 102).
159 Cape Town and Districts Waterworks Co Ltd v Executors of Elders (1890) 8 SC 9 12.
160 De Vos ibid 303; Huber HR 2 1 28.
161 VerLoren van Themaat 101; Klopper 1970 THRHR 38.
162 As in Letoka 1947 3 SA 713 (O) 716; Sephume 1948 3 SA 982 (T) (removal of part of
corpse “to make medicine”); Eshowe Local Board v Hall 1923 NPD 233 (corpse re-
moved from one grave to another).
436 CRIMINAL LAW

the surface of the earth.163 It is not necessary that parts of the body or the tomb-
stone be removed.164
5 Unlawfulness The violation must be unlawful. The exhumation of a body
may, for example, be sanctioned by statute or a judicial order. It would seem that
it is not unlawful to plough over very old and unidentifiable graves, especially
if that portion of the grave above the ground consists of only a small mound.165
The basis for punishing the violation of a grave, namely the affront to the de-
ceased’s relatives, falls away in this case.
6 Intention X must have the intention of disturbing, destroying or damaging
the grave. This is lacking if X does not realise that the object she is damaging is
in fact a human grave.166

H VIOLATING A CORPSE

1 Definition This crime consists in unlawfully and intentionally vio-

lating a corpse.

2 Discussion of crime Although there is little authority in our case law on

this crime, there can be no doubt that there is such a crime in our law. In Scott-
Crossley167 and Coetzee,168 for example, X was convicted of this crime. There
is a need for this crime. If, for example, Z has killed Y and thereupon X, who
had nothing previously to do with Z, comes upon the scene and kicks the dead
body of Y or burns or stabs it, X will be liable to be convicted of the crime. X
may be convicted of this crime only if at the time of her action she knew that Y
was already dead, that is, a corpse.

________________________

163 Voet 47 12; Damhouder 102.

164 Letoka supra 716.
165 Cf Dibley v Furter 1951 4 SA 73 (C).
166 D 47 12 3; Voet 47 12 1 3; Letoka supra 716–717.
167 2008 1 SACR 223 (SCA) par 33.
168 1993 2 SACR 191 (T), discussed by Snyman 1994 SALJ 1.
 CRIMES AGAINST A PERSON

CHAPTER
XIV

CRIMES AGAINST LIFE

A MURDER

1 Definition Murder is the unlawful and intentional causing of the death

of another human being.1

2 Elements of crime The elements of the crime are the following: (a) caus-
ing the death (b) of another person (c) unlawfully and (d ) intentionally.2
3 General Because there are many different ways in which a person can cause
another’s death unlawfully and intentionally, the crime of murder in South Afri-
can law covers a wide field. The moral reprehensibility of the intentional caus-
ing of another’s death may vary from case to case. At the one extreme there is
the case where X kills Y cold-bloodedly, with premeditation and out of hatred.
At the other extreme there is the situation where X and Y drink liquor together,
Y acts provocatively towards X, a quarrel ensues, Y slaps X across the face
whereupon an enraged X kills Y. Then there is also the situation in which X
gives Y, who suffers from cancer and endures excruciating pain, a lethal in-
jection in order to release him from his suffering;3 the situation where X, at Y’s
request, assists him to commit suicide;4 and even the situation where X stumbles
upon Y in the act of committing adultery with his (X’s) wife, and an enraged X
then kills Y. According to South African law, in all these situations X is liable
to be convicted of murder.
________________________

1 Ndhlovu 1945 AD 369 373; Valachia 1945 AD 826 829; Sigwahla 1967 4 SA 566 (A)
570–571; Ntuli 1975 1 SA 429 (A) 436–437.
2 Strictly speaking, the first element ought to be subdivided into (i) an act or omission (ii)
which causes (iii) the death, but in the discussion which follows these three requirements
will, for practical reasons, be telescoped into the one element set out under (a).
3 Hartmann 1975 3 SA 532 (C).
4 Hibbert 1979 4 SA 717 (D).

437
438 CRIMINAL LAW

It would have been much better if the crime of murder were graded in our
law. This is the position in other legal systems. In the USA there is the well-
known difference between “murder in the first degree” and “murder in the sec-
ond degree”. Within the field of the intentional causing of death, English law
likewise distinguishes between murder and voluntary manslaughter, German
law between mord and totschlag and Dutch law between moord and doodslag.
Similar or analogous differences between different crimes reflecting different
types of intentional causing of death are to be found in most other legal systems.
The present definition of murder in South African law is an oversimplification
of something which is more complex than one might initially tend to think. If,
like the other legal systems mentioned above, our law had recognised two differ-
ent crimes by which the unlawful, intentional killing of somebody else were
punished, our courts would not have experienced so many problems in deciding
what the effect of provocation on liability was. Provoked homicide could, in
principle, then simply have been treated as falling under the less serious form
of intentional homicide.
4 Causing the death The act consists in a voluntary act or omission which
causes the death of another human being. The concepts of a voluntary act or
omission and of causation were discussed in detail above.5 The following is a
very brief summary of these rules: X must either commit a voluntary positive
act (commissio) or there must be a voluntary omission (omissio) on his part in
circumstances in which there is a legal duty on him to act actively. The act or
omission is voluntary if X is capable of subjecting his bodily movements to his
will or intellect. This act or omission qualifies as the cause of Y’s death if it is
both the factual and legal cause of the death. It is the factual cause of death if it
is a conditio sine qua non, that is, an indispensable condition, of the death,
which means that X’s conduct cannot be thought away without Y’s death dis-
appearing at the same time. It is the legal cause of Y’s death if a court is of the
view that there are policy considerations for regarding it as the cause of Y’s
death. In this respect one or more of a number of theories of legal causation is
used, such as the individualisation theories (proximate cause), the theory of
adequate causation, or the novus actus interveniens theory.
5 Another human being Neither suicide nor attempted suicide is a crime.6
This does not mean, however, that to instigate, assist or put another in a position
to commit suicide can never be criminal. In certain circumstances such conduct
can amount to murder or culpable homicide since the instigator’s conduct may
be causally related to the death,7 or otherwise, it may amount to attempted
murder.
The human being killed must have been a live human being. To “kill” an
unborn foetus and separate it from the mother’s body is treated in our law as
abortion, not murder. Various tests may be used to ascertain whether a child was
born alive, such as to ascertain whether the child breathed, whether it had an
independent blood circulation, or whether it had been completely expelled from
________________________

5 Supra II A, II B and III B.

6 Grotjohn 1970 2 SA 355 (A) 363; Gordon 1962 4 SA 727 (N) 729H.
7 Grotjohn supra 364–365; supra III B 20.
 CRIMES AGAINST LIFE 439

the mother’s body. Section 239(1) of the Criminal Procedure Act 51 of 1977
lays down that a child is deemed to have been born alive if it is proved that it
breathed, whether it had an independent circulation or not, and that it is not
necessary to prove that the child was at the time of its death entirely separated
from its mother’s body. There is, therefore, a presumption of live birth if a child
has breathed.
Whether this presumption is rebuttable has not been decided. It is submitted
that it is rebuttable.8 The relevant section is merely of procedural importance,
and does not lay down substantive law. It facilitates the task of the prosecution
in cases where the child has breathed – something which is ordinarily not dif-
ficult to prove. The hydrostatic test, according to which the lungs are placed in
water to determine whether they float, is employed. The section does not state
when a child is born alive, but merely how it may be proved that it was born
alive. It therefore remains possible for X to prove that even if it breathed the
child was in fact dead before it was completely expelled from the mother’s body.
The wording of the section is ambiguous: an irrebuttable presumption of live
birth is not the only inference to be drawn. The very fact that the wording of the
section is ambiguous is the more reason for interpreting it in X’s favour.
6 Unlawfulness The killing must be unlawful. Certain grounds of justifi-
cation such as private defence (which includes self-defence), necessity, official
capacity or obedience to orders, may justify an otherwise unlawful killing. These
grounds of justification have already been discussed in detail above.9 It is suf-
ficient to reiterate here that consent to the killing by the deceased does not
exclude the unlawfulness of the killing.10 Neither is euthanasia a ground of
justification.11
7 Intention The form of culpability required is intention.12 The (unlawful)
negligent causing of another’s death is culpable homicide. The requirement of
intention has already been discussed in detail above.13 In that discussion the
emphasis was on the requirement of intention for murder; it is therefore unneces-
sary to discuss it again.
The rules relating to the element of intention may very briefly be summarised
as follows: The intention requirement is satisfied not only if X has the direct
intention (dolus directus) to kill Y, but also if he merely foresees the possibility
of Y being killed and reconciles himself to this possibility (dolus eventualis).
The test in respect of intention is purely subjective. This subjective mental state
may nevertheless be inferred from the objective facts proved by the state.
Awareness of unlawfulness is an integral part of intention. A mistake concern-
ing a material element of the crime (such as the requirement that it is a human
being that must be killed) excludes intention. X’s motive is irrelevant.

________________________

8 This is also the opinion expressed in De Wet and Swanepoel 228.

9 Supra IV.
10 Robinson 1968 1 SA 666 (A).
11 Hartmann 1975 3 SA 532 (C) 535; Nkwanyana 2003 1 SACR 67 (W) 72.
12 See the authorities supra fn 1.
13 Supra V C.
440 CRIMINAL LAW

8 Punishment
(a) General The death sentence used to be a competent sentence for murder,
but in 1995 in Makwanyane14 the Constitutional Court held that this form of
punishment is unconstitutional, because it amounts to an unjustifiable violation
of inter alia the right to life, the right to dignity and the right not to be subjected
to cruel, inhuman or degrading punishment. Before 1997 the court had a free
discretion as to the period of imprisonment to be imposed upon a conviction of
murder. It is a well-known fact that the incidence of murder has increased alarm-
ingly since about 1990 (when a moratorium was first placed upon the execution
of death sentences). Statistics relating to the prevalence of the crime has already
been given above in the discussion of the crisis of the criminal justice system in
South Africa.15
As a reaction to the high crime level, section 51 of the Criminal Law Amend-
ment Act 105 of 1997 was enacted. This makes provision for minimum sentences
to be imposed for certain crimes, such as murder, in certain circumstances. Sub-
section (6) of section 51 provides that the minimum sentences (to be set out
below) are not applicable in respect of a child who was under the age of 16
years at the time of the commission of the crime.
(b) Imprisonment for life must sometimes be imposed Section 51(1) of the
abovementioned Act provides that a Regional Court or High Court must sen-
tence a person convicted of murder to imprisonment for life in the following
circumstances:
(1) if the murder was planned or premeditated;
(2) if Y was a law enforcement officer (such as a member of the police) who
has been murdered while performing his functions as a law enforcement
officer, irrespective of whether he was on duty or not;
(3) if Y was somebody who has given or was likely to give material evidence
at a criminal proceeding with reference to any crime referred to in Schedule
1 of the Criminal Procedure Act 51 of 1997 (this Schedule contains a list of
crimes which may be described as serious);
(4) if Y’s death was caused by X in committing or attempting to commit (or
after having committed or attempted to commit) rape or compelled rape;
(5) if Y’s death was caused by X in committing or attempting to commit (or
after having committed or attempting to commit) robbery with aggravating
circumstances;
(6) if the murder was committed by a person, group of persons or syndicate
acting in the execution or furtherance of a common purpose or conspiracy;
(7) if Y was killed in order to unlawfully remove any part of his body;
(8) Y’s death resulted from certain crimes mentioned in the Witchcraft Sup-
pression Act 3 of 1957.
The existence of such a punishment as imprisonment for life (which has re-
placed the death sentence as the maximum sentence that can be imposed upon a
________________________

14 1995 2 SACR 1 (CC).

15 Supra I D 2 (b).
 CRIMES AGAINST LIFE 441

conviction of murder) must, however, be taken with a pinch of salt, since some-
body who has received such a punishment may be released on parole.16
(c) Other minimum periods of imprisonment must sometimes be imposed If
one of the circumstances set out immediately above are not present, X does not
qualify for the mandatory imprisonment for life. However, section 51(2) of the
Act provides that in such a situation a high or regional court is nevertheless
obliged to impose the following minimum periods of imprisonment:
(1) fifteen years in respect of a first offender;
(2) twenty years in respect of a second offender;
(3) twenty five years in respect of a third or subsequent offender.
(d ) Avoidance of minimum sentences There are always cases where a court
is of the opinion that the imposition of one of the above minimum periods of
imprisonment would, considering the specific circumstances of the case, be very
harsh and unjust. In subsection (3)(a) of section 51 the legislature has created a
mechanism whereby a court may be freed from the obligation of imposing one
of the minimum sentences referred to above. According to this subsection a
court is not bound to impose imprisonment for life or for one of the minimum
periods of imprisonment set out above, if there are substantial and compelling
circumstances which justify the imposition of a lesser sentence than the pre-
scribed one. If such circumstances exist, a court may then impose a period of
imprisonment which is less than the period prescribed by the legislature.
The crucial words in the Act relating to the avoidance of mandatory minimum
sentences are the words “substantial and compelling circumstances”. In grap-
pling with the interpretation of this important expression, the courts initially
came to conclusions which were not always harmonious.17 However, in Mal-
gas18 the Supreme Court of Appeal considered the interpretation of these words
and formulated a relatively long list of rules to be kept in mind by courts when
interpreting the words.19 Without setting out all these rules, it may be stated that
perhaps the most important of them provides that if a court is satisfied that the
circumstances of the case render the prescribed sentence unjust in that it would
be disproportionate to the crime, the criminal and the needs of society, so that
an injustice would be done by imposing that sentence, it is entitled to impose a
lesser sentence.20
In Dodo21 the Constitutional Court held that the introduction by the legislature
of minimum sentences in section 51 was not unconstitutional.
________________________

16 S 73(6)(b)(iv) and (vi) of the Correctional Services Act 111 of 1998 provides that a per-
son who has been sentenced to life imprisonment may not be placed on parole until he has
served at least 25 years of the sentence, but on reaching the age of 65 years a prisoner may
be placed on parole if he has served at least 15 years of such sentence. This means that if
X was sentenced to life imprisonment when he was 50 years of age, he may be released
after only 15 years in prison.
17 See the cases referred to in Gqomana 2001 2 SACR 28 (C), which was decided just before
the supreme court of appeal delivered the judgment in Malgas infra. For an analysis of the
case law before the decision in Malgas infra, see Terblanche 2001 SACJ 1.
18 2001 1 SACR 469 (SCA).
19 See par 25 of the judgment (481f–482g).
20 See rule I in par 25 of the judgment (482e–f).
21 2001 1 SACR 594 (CC).
442 CRIMINAL LAW

B CULPABLE HOMICIDE

1 Definition Culpable homicide is the unlawful, negligent causing of the

death of another human being.22

2 Elements of crime The elements of the crime are the following: (a) caus-
ing the death (b) of another person (c) unlawfully and (d ) negligently.
3 Difference between culpable homicide and murder Culpable homicide
differs from murder merely in the form of culpability required: whereas neg-
ligence is required for culpable homicide, intention is required for murder. The
first three elements of the crime set out above in paragraph 2 are exactly the
same as in the crime of murder. They have already been dealt with in the dis-
cussion of murder as well as of the general principles of liability.23 The only
element of the crime that merits separate consideration is the form of culpabil-
ity required, namely negligence.
4 Culpability – negligence The form of culpability required for this crime is
negligence. The contents of the concept of negligence, as well as the test to
determine negligence, have already been fully discussed above.24 It is sufficient
merely to reiterate here, by way of summary, that the test for negligence is, in
principle, objective. The court must ask itself (a) whether the reasonable person
in the same circumstances would have foreseen the possibility that Y’s death may
result from X’s conduct; (b) whether the reasonable person would have taken
steps to guard against such a possibility; and (c) whether X’s conduct deviated
from what the reasonable person would have done in the circumstances.
Where it has been proved that X, charged with murder, killed the deceased
unlawfully, but because of factors such as intoxication or provocation lacked
intention, the crime is not automatically reduced from murder to culpable homi-
cide. The court must be satisfied that X was negligent in causing Y’s death.25 It
is, admittedly, usually easy to draw this conclusion in cases of assault resulting
in death, yet there is no general presumption that in every case of assault which
results in death X ought to have foreseen that death might result, and that he
was therefore negligent.26
There is a certain type of case in which the courts, even though X, at first
glance, would seem to have had an intention to kill Y, convict X of culpable
homicide. These are cases where X, in killing, exceeds the bounds of a ground
________________________

22 Ntuli 1975 1 SA 429 (A) 436A; Burger 1975 4 SA 877 (A) 878H; Crossberg 2008 2
SACR 317 (SCA) par 83.
23 As to the requirement that there must be an act or omission which is the cause of Y’s
death, see supra II and III B. As to the requirement that it is another human being that must
be killed, see supra XIV A 5. As to the requirement of unlawfulness, see supra IV.
24 Supra V D.
25 Bernardus 1965 3 SA 287 (A); Mtshiza 1970 3 SA 747 (A) 752; Ntuli supra 436–437;
Burger supra 878–879.
26 Van As 1976 2 SA 921 (A) 927–928, in which a conviction of culpable homicide involv-
ing an assault was set aside by the Appellate Division. It was found that when X slapped
Y’s cheek he could not reasonably have foreseen that Y (a very fat man), when hit, would
fall backwards, knock his head and die.
 CRIMES AGAINST LIFE 443

of justification such as private defence (self-defence). X is then convicted, not

of murder, but of culpable homicide. Previously these cases were referred to as
the “partial excuse cases”: it was said that the reason why X is convicted of
culpable homicide (and not of murder) in such cases is that, although there was
an intention to kill, this intention is “not entirely but to some extent excusable”.27
However, a closer examination of these cases reveals that in these cases inten-
tion to kill (in the technical sense of the word which the courts apply) is absent
because X lacked awareness of unlawfulness. As explained above,28 awareness
of unlawfulness is an indispensable component of the concept of intention as
employed in criminal law. Although X directs his will at killing Y, because of
factors such as excitement or over-eagerness he fails to appreciate that he is in
fact acting unlawfully.29 This is the real reason why dolus or intention to kill in
its proper legal connotation is lacking. Furthermore, the “partial excuse rule”,
according to which a person may be guilty of culpable homicide even though
he had an “intention to kill”, is irreconcilable with the clear view of the Appel-
late Division, especially in a later judgement such as Ntuli,30 that the form of
culpability in culpable homicide is not intention, but negligence.
In a number of cases the question arose whether X could be convicted of
culpable homicide if he was charged with this crime, but the evidence revealed
that he in fact had the intention to kill. Different divisions of the supreme court
came to different conclusions on this issue, but in Ngubane31 the Appellate Div-
ision resolved the differences by holding that it is wrong to assume that if X
acted intentionally it is impossible to find that he was also negligent. This means
that in this type of case X may be found guilty of culpable homicide despite the
fact that he killed Y intentionally. This matter was elucidated in the discussion
above of negligence.32
5 No attempt A person cannot intend to be negligent, and since intention is
required in an attempt to commit a crime there is no such crime as attempted
culpable homicide.33

C ADMINISTERING POISON OR
ANOTHER NOXIOUS SUBSTANCE

1 Definition This crime consists in unlawfully and intentionally admin-

istering poison or another noxious substance to another person.

2 Discussion of crime The crime has a very limited application, since it

generally overlaps with the much more familiar crimes of murder and culpable
homicide (where Y dies as a result of the poison),34 attempted murder35 and
________________________

27 Eg Hercules 1954 3 SA 826 (A) 832F; Mhlongo 1960 4 SA 574 (A) 580H.
28 Supra V C 23.
29 Snyman 1971 THRHR 184; Botha 1975 THRHR 41.
30 1975 1 SA 429 (A) 436–438.
31 1985 3 SA 677 (A).
32 Supra V D 13.
33 Ntanzi 1981 4 SA 477 (N) 482F–G; Naidoo 2003 1 SACR 347 (SCA) 345g.
34 Matthews 1950 3 SA 671 (N).
35 Tshabalala 1921 AD 13 16; Maseko 1950 1 SA 586 (A).
444 CRIMINAL LAW

assault.36 Prosecutions for this crime are therefore rare. In some cases the crime
has been described as administering poison “with intent to cause grievous bodily
harm”,37 but it would seem that this intention is only a factor which may aggra-
vate punishment and is not an essential element of the crime.38
X must have been aware of the fact that the substance he was dealing with
was or contained poison or some other noxious substance, and he must at least
have foreseen the possibility that someone might consume it.39 Indirect adminis-
tration, that is, leaving the poisonous substance in some place where Y afterwards
picks it up and swallows it, is sufficient.40 Administration is usually effected by
cunning or stealth, but may also be effected by force.41 The poison or other
noxious substance must be administered to another person. To administer it to
an animal constitutes malicious injury to property or attempt to commit that
crime.

D EXPOSING AN INFANT

1 Definition The crime of exposing an infant consists in the unlawful

and intentional exposure and abandonment of an infant in such a place or
in such circumstances that its death from exposure is likely to result.42

2 Discussion of crime In Roman-Dutch law there was a crime known as

crimen expositionis infantis. This included, firstly, cases where someone aban-
doned a child in order to avoid parental responsibilities but without the inten-
tion to kill, in a place where it was likely to be found. Secondly it included
cases where someone abandoned a child with the intention of killing the child
or at least with a reckless disregard for the child’s survival.43
Prosecutions for the common-law crime are rare. As far as can be ascertained
the only reported case in which someone was charged with this crime is Adams.44
In this case X was convicted of the crime. There is, however, no reason to doubt
that the crime still exists in our law. In dicta in later cases45 it was assumed that
the crime still existed, and sections 258(d ) and 259(c) of the Criminal Procedure
Act provide that a conviction of this crime is a competent verdict on charges of
murder and culpable homicide respectively.
________________________

36 Marx 1962 1 SA 848 (N).

37 Kelaman (1897) 14 SC 329; Tshabalala supra; Maseko supra.
38 Kelaman supra 333.
39 Dames 1951 2 PH H140 (C). The poison or noxious substance need not necessarily be
administered with an intent to kill or to cause grievous bodily harm; the purpose may be
less sinister, eg to give somebody a “love potion”: Jack 1908 TS 131 133.
40 Kelaman supra; Dames supra.
41 Where Y dies, his willingness to accept the noxious drug is no defence: Matthews supra
674A.
42 This definition is based on the description of the crime in Adams (1903) 20 SC 556; Hunt-
Milton 484. “Exposing an infant” is the name for the crime used in ss 258(d ) and 259(c)
of the Criminal Procedure Act 51 of 1977.
43 Matthaeus 47 16 2; Huber HR 6 13 32; Moorman 2 7; Van Leeuwen RHR 4 34 4; Van
der Linden 2 5 12.
44 (1903) 20 SC 556.
45 Oliphant 1950 1 SA 48 (O) 50 and Bengu 1965 1 SA 298 (N) 303.
 CRIMES AGAINST LIFE 445

The most important reason why prosecutions for this crime are rare is that if
the child dies as a result of abandonment and exposure the person abandoning
the child can be charged with murder (or culpable homicide, if the death was
caused negligently). Another reason may be that the crime always overlaps
with attempted murder if death does not ensue, for, although X must at least
foresee the possibility that the child may die, attempted murder is committed
even if it does not, for example, where it is fortuitously seen and saved by some
passer-by.46
The child must be alive at the time of exposure. If the child is already dead,
X may, depending upon the circumstances, contravene section 113 of the Gen-
eral Law Amendment Act 46 of 1935, which deals with concealment of births.47

________________________

46 As in Adams supra. It is submitted that in Meleka 1965 2 SA 774 (T) X could have been
charged with this crime.
47 Oliphant supra. On this statutory crime, see supra XIII E.
 CHAPTER
XV

CRIMES AGAINST BODILY INTEGRITY

A ASSAULT

1 Definition Assault consists in any unlawful and intentional act or

omission
(a) which results in another person’s bodily integrity being directly or
indirectly impaired, or
(b) which inspires a belief in another person that such impairment of her
bodily integrity is immediately to take place.1

2 Elements of crime The elements of the crime are the following: (a) con-
duct which results in another person’s bodily integrity being impaired (or the
inspiring of a belief in another person that such impairment will take place);
(b) unlawfulness and (c) intention.
3 Origin The crime of assault, as it is known in South Africa today, was
unknown in our common law. Conduct which would, today, be punished as
assault, was punished as a form of iniuria.2 Under the influence of English law
assault in our law developed into a separate substantive crime. An iniuria
committed against another’s dignitas (dignity) is punished in our law as crimen
iniuria; an iniuria against another’s reputation (fama) is punished as criminal
defamation. Assault is nothing other than an iniuria committed against another’s
bodily integrity (corpus).3 That the crime of assault can be committed in two
________________________

1 The reasons for this definition will become apparent in the discussion infra par 4 (especially
4(d) in the text). The (b) part of the definition in the text is based on the following prin-
ciple, formulated by Schreiner J in Sibanyone 1940 JS 40 (T), and followed in Miya 1966
4 SA 274 (N) 276–277; Mahlakwane 1968 2 PH H331 (O); Gondo 1970 2 SA 306 (R)
307D–E and Mngomezulu 1972 2 PH H96 (N): “. . . for an assault to be committed when
no physical impact takes place there must be a threat of immediate personal violence in
circumstances that lead the person threatened reasonably to believe that the other intends
and has the power immediately to carry out the threat.” Further reasons for the definition
in the text will become clear in the discussion of the crime that follows directly.
2 D 47 10; Voet 47 10; De Villiers 78–80.
3 Jack 1908 TS 131 132–133; Marx 1962 1 SA 848 (N) 853.

447
448 CRIMINAL LAW

distinct ways, namely by the application of force or by the inspiring of a belief

in Y that force is to be applied to her, is largely due to the influence of English
law and the distinction drawn in that system between “assault” and “battery”.4
These two English-law crimes have fused into the single crime of assault.5 The
strong influence of English law in the nineteenth century is also responsible for
the development of a number of qualified forms of assault, namely assault with
intent to do grievous bodily harm, assault with intent to commit another offence,
and indecent assault. “Ordinary” assault, which does not fall into one of these
categories, is also known as “common assault”.
4 The conduct: causing impairment of another’s bodily integrity
(a) General The conduct which is criminalised by this crime can take differ-
ent forms. The most common way in which the crime is committed, is by apply-
ing force to Y’s body.6 This way of committing the crime is so common and
well-known, that many sources refer to the act merely as “the application of
force”.7 However, this description of the act is not wide enough to cover all the
ways in which the crime can be committed. In order to understand this state-
ment properly, it is feasible to consider, firstly, the different ways in which the
crime can be committed.
(b) The application of force The most common way in which the crime is
committed is by the application of force by X to Y’s body. This may happen
either directly or indirectly.
(i) Direct application Direct application of force occurs when X applies
physical force with a part of her body to a part of Y’s body, thereby striking or
at least touching a part of Y’s body (vis corporis corpori afflicta). The direct
application of force coincides with the meaning of the word “assault” in general
parlance, as well as the layman’s view of what force entails. For example, X
punches Y with her fist, slaps her in her face, kicks her, or trips her. Subject to
the de minimis rule,8 the slightest contact with Y’s body may be sufficient to
constitute this crime. For example, the courts have held that X commits assault
merely by walking to Y and knocking Y’s hat from his head without his con-
sent,9 or by X merely taking the arm of Y, a girl, without her consent.10 In cases
________________________

4 Jolly 1923 AD 176 179, 184; Marx supra 851.

5 Jolly supra 179.
6 Van der Bijl 2012 SACJ 1 20 argues that the definition of assault should be widened so
that the concept of “impairment of another’s bodily integrity” include serious emotional
abuse, and that any conduct which has a detrimental effect on Y’s psyche or sensory feel-
ings should be regarded as an infringement of bodily integrity. Serious verbal abuse which
effectively disturbs mental tranquillity should, according to her, be brought within the
ambit of the first leg of the definition of assault. It is submitted that concepts such as “im-
pairment of sensory feelings” and “emotional abuse” are too vague to serve as tools to
determine criminal liability.
7 Hunt-Milton 406; LAWSA 6 par 262; Burchell and Milton 680.
8 Supra IV J. For a case of assault where the de minimis rule was applied, see Bester 1971
4 SA 28 (T). For cases of assault where the court refused to apply this rule, see Maguire
1969 4 SA 191 (RA) 192, 193A and Schwartz 1971 4 SA 30 (T). Also see the remarks in
A 1993 1 SACR 600 (A) 607.
9 Herbert 10 CTR 424.
10 Gosain 1928 TPD 516.
 CRIMES AGAINST BODILY INTEGRITY 449

of indecent assault, it was held that the mere touching of another person may
suffice, as where a man merely places his hand on a woman’s breast without
her consent.11
(ii) Indirect application Force can also be applied indirectly. This happens if
X does not use a part of her body to apply force to a part of Y’s body, but uses
an instrument or other strategy for this purpose, such as when X hits Y with a
stick, throws stones at Y, causes a train to derail in order to harm the passen-
gers,12 lets a vicious dog loose on Y, snatches away a chair that Y was going to
sit on from under Y so that Y falls to the floor, spits in Y’s face, empties a glass
of water (or beer) on Y, or when Y, a hiker, gets lost in thick mist, asks X the
way, and X then deliberately shows Y a way that will cause her (Y) to fall over
a precipice.13
Since the slightest touch may amount to assault, it is not a requirement of the
crime that X should actually injure Y. It is not even required that Y be con-
scious of the application of force upon her, because assault can be committed
even in respect of somebody who is unconscious, extremely drunk or asleep, as
when X cuts off some of Y’s hair while Y is asleep.14
The assault may also consist in X’s administering poison or some other harm-
ful substance, such as a narcotic drink, to Y without Y being aware that she is
imbibing the substance, as where X secretly mixes a drug in Y’s coffee. In
Marx15 X gave three glasses of wine each to two children, aged five and seven
years. After drinking the wine the children became ill. The younger was, for
example, unable to walk and was in a semi-conscious condition. X was found
guilty of assault.16 In A17 the Appellate Division held that to force another per-
son to drink any substance, constitutes a violation of her physical integrity, and
amounts to an assault upon her. The court held that this is so not only if the
substance is harmful or unpleasant to drink (as where it consists in urine), but
even if it is harmless, as where it is pure water.
Assault may be committed through the instrumentality of a third party. If X
orders Z to assault Y and Z executes the order, X commits assault.18 X commits
the crime even if she forces Y by means of threats to injure herself (Y, herself),
by stabbing herself with a knife.19 In B20 X was convicted of assault in the
following circumstances: she observed Z (who was her lover) assaulting Y, her
child, who was two and a half years old. As the mother of Y she was under a
legal duty to protect Y, but failed to do so. In allowing Z to assault Y, she was
also (ie, in addition to Z) liable for the assault upon Y – despite the fact that she
________________________

11 M 1961 2 SA 60 (O).
12 Jolly supra.
13 Savage (1990) 91 Cr App R 317 (CA).
14 D 47 10 33 2.
15 1962 1 SA 848 (N).
16 Also see D 47 10 15 pr. This type of conduct is also mentioned by Voet 47 10 7 (example
(vi)) as an example of iniuria. According to the Romans, iniuria was also committed by
causing another person’s room to be filled with smoke. (D 47 10 44).
17 1993 1 SACR 600 (A) 607d.
18 A 1993 1 SACR 600 (A) 609f–g.
19 A supra 609i–j.
20 1994 2 SACR 237 (E) 248.
450 CRIMINAL LAW

herself performed no positive act. It follows that this crime can in certain
circumstances be committed even by an omission.21
(c) Inspiring fear that force will be applied Assault may further be commit-
ted without there being any direct or indirect physical contact or impact on Y’s
body, namely when X inspires fear or a belief in Y that force is immediately to
be applied to her. Typical examples of this form of assault are the following: X
waves her fists in front of Y’s face; X pulls a knife out of her pocket and pre-
tends that she is going to stab Y; or X brandishes a firearm and aims it at Y.
The following are the requirements for liability in respect of this form of
assault:
(i) Personal violence There must be a threat of violence against the person
of Y, that is, against Y’s body. Thus, a mere threat to damage Y’s property is
not sufficient.
(ii) Immediate violence It must be a threat of immediate violence. A mere
threat to inflict harm on Y sometime in the future, is not sufficient.22 A con-
ditional threat does not amount to assault if X is lawfully entitled to act in the
way that she is threatening to act. Thus, X does not commit assault if she merely
threatens to use force if she (X) should be attacked, because this merely amounts
to a threat to defend herself.23 However, if the condition is that violence would
be applied unlawfully, it could well amount to assault if, on account of the
threat, Y is prevented from doing what she is lawfully entitled to do. Thus, in
Dhlamini24 X was convicted of assault in the following circumstances: he stood
twenty paces from Y’s hut and threatened to attack Y with sticks and stones if
Y should dare to come out of his hut. Y was for all practical purposes a prisoner
in his own hut.
(iii) Subjective test The mere fact that X is able to carry out her threat is not
sufficient. The test is whether Y (the person who was threatened) believed that
X intended to carry out the threat, and also that X was able to do so.25 The
essence of this form of assault is the intentional inculcation of fear of bodily
harm in Y. The test is subjective in the sense that one must have regard to Y’s
state of mind, and what she believed would happen. If Y does not fear the threat
of violence, no assault is committed, even though X is capable of carrying out
her threat and intends to do so.26 Whether X is in fact capable of carrying out
her threat, is immaterial. Thus, if X aroused fear in Y, the fact that the firearm
________________________

21 A further hypothetical example of assault through an omission is the following: X comes

out of his house and finds that his dog is biting Y. X intentionally refrains from ordering
the dog to stop the biting, thereby causing the biting to continue. It is submitted that X
likewise commits assault by means of an omission in the following example: X sees that
her enemy, Y, who is blind, is going to fall into a manhole while walking on the pavement.
To prevent Y from falling into the manhole, X merely has to shout “Stop!” or to call Y’s
name. X nevertheless intentionally refrains from doing anything, and as result Y falls into
the manhole. Public policy dictates that in such a case there is a legal duty upon X to
warn Y timeously about the manhole.
22 Fick 1945 GWL 11; Miya 1966 4 SA 274 (N) 276D.
23 Bates 1903 TS 513; Miya supra 277.
24 1931 1 PH H57 (T). Also see Ximba 1969 2 PH H223 (N).
25 See the cases referred to supra fn 1, as well as Mtimunye 1994 2 SACR 482 (T) 485a–b.
26 Supra fn 1; Mtimunye supra 485a–b.
 CRIMES AGAINST BODILY INTEGRITY 451

with which X threatened Y was unloaded, or loaded with blank cartridges,27

would not afford X a defence. As will be pointed out below in the discussion of
the requirement of intention in assault, X must also know that Y believes that
the firearm is loaded, and realise that fear has been inspired in Y.
(iv) Words sufficient to constitute assault According to earlier definitions of
assault,28 the crime could be committed by mere threats only if the threat was
delivered “by an act or a gesture”. According to this requirement mere verbal
threats would, thus, not have been sufficient. It is submitted that this view is
incorrect. There is no logical reason why fear aroused by mere verbal threats
could not also be sufficient to constitute the crime (provided, of course, that the
other requirements for the crime were also met). It is possible that gestures may
sometimes not have the desired effect, while words could very well have it.
What is important, is not how the fear is inspired, but whether it is inspired.
If X falsely tells Y, who is blind, that she (X) has a gun pointed at her and
intends to shoot her, then X’s conduct ought to qualify as an assault. If Y turns
a corner to be confronted by a motionless robber, X, who, with gun in her hand,
commands “Hands up”, or if X phones Y and tells her that there is a bomb
planted below her house which she (X) is about to detonate any minute, there is
no reason why such threats should not qualify as an act constituting this form of
assault. In 1998 in Ireland 29 the House of Lords held that words alone may
constitute assault, Lord Steyn stating that “[a] thing said is also a thing done”.30
In this case the court held that X committed assault even though he said nothing:
X made a series of “silent telephone calls” to women, as a result of which they
suffered significant psychological symptoms.
(v) Fear need not be reasonable The earlier definitions of the crime31
required that for assault to be committed by threats of violence Y’s fear of attack
had to be based on reasonable grounds. In other words, a reasonable person
should also have become frightened. However, as far as is known, there is no
case in which X was acquitted merely because Y’s fear was unreasonable. It is
submitted that the fear need not be reasonable. If reasonableness were required,
it would be almost impossible to commit this form of assault in respect of
unduly timid, superstitious or credulous people, and this would be undesirable
from a policy point of view.
(d) Definition of prohibited behaviour: Causing impairment of bodily integ-
rity From the discussion in paragraphs (b) and (c) above it is clear that the pro-
hibited conduct in this crime may vary considerably. It is submitted that a
description of the conduct element in terms of “the application of force to Y’s
body” is too narrow to encompass all the different ways in which the crime can
be committed. Such a narrow definition is irreconcilable with (a) the rule that
even the slightest non-consensual touching of Y may be sufficient to constitute
“violence”, (b) the recognition in our law of certain cases of indirect “violence”
as sufficient to constitute assault, as where X secretly administers a drug to Y
by, for example, throwing a pill in her coffee, and (c) the rule that the crime can
________________________

27 As in Pasfield 1974 2 PH H92 (A).

28 Gardiner en Lansdown 2 1570.
29 [1998] AC 147.
30 At 162.
31 See the cases mentioned supra fn 1.
452 CRIMINAL LAW

be committed by a mere omission. Furthermore, (d) the rule that the crime may
be committed by mere words can hardly be reconciled with the idea that all
assaults amount to the application of violence: for example, Y, who has lost her
way in thick mist, asks X to direct her where to go; X then directs her to walk
in a certain direction, while knowing that such a direction leads to a precipice;
Y thereupon falls over this precipice. It is unrealistic to talk of “the application
of force” in any of the four instances just mentioned.
In answering the question whether certain conduct constitutes violence, one
should not become obsessed with the specific techniques or “type of act” which
X employs. The focus should rather be on the consequences of X’s behaviour,
and more particularly, whether the conduct resulted in an impairment of Y’s
bodily integrity. If this is indeed the case, there is an act of assault, irrespective of
whether there was a commission or omission on X’s part; irrespective of whether
there was a physical application of force by X to Y’s body or merely a verbal
threat by X; and irrespective of whether Y experienced any physical pain. If X
cuts Y’s hair while Y is sleeping, without Y having consented to the act and
without Y experiencing any touching of her body, X still commits assault, even
though there was no “violence”. “Violence” is a slippery and elusive concept.
It is therefore submitted that assault should not be regarded as a formally
defined crime but as a materially defined crime, that is, a crime that consists in
the causing of a certain result. Assault namely consists of any commission or
omission resulting in a certain state of affairs – namely an impairment of Y’s
bodily integrity.32
5 Unlawfulness The causing of an impairment of Y’s bodily integrity must
be unlawful. There must, in other words, be no justification for X’s conduct.
Examples of grounds of justification which render the conduct lawful are private
defence; necessity (as where X, fleeing a burning building about to collapse,
bumps against Y who happens to stand in her way); official capacity (as where
a police official uses force to arrest a criminal); consent (as where X, a surgeon,
performs an operation on Y with the latter’s consent; or where X bumps against
Y in the course of a sporting contest in respect of which Y has voluntarily con-
sented to take part).
6 Intention X must have intended to apply force to the person of another, or
to threaten her with immediate personal violence in the circumstances described
above. This implies that she must have been aware of Y’s fear. If, for some
reason, she believed that her threats would not be taken seriously by Y, she
lacked the required intention.33 Dolus eventualis is sufficient,34 but, of course,
not negligence. There is no such crime in our law as negligently causing bodily
injury.35
________________________

32 Snyman 2004 TSAR 448. In the new definition of the crime of battery in the proposed
codification of English criminal law, the crime is likewise defined in terms of the causation
of a certain consequence: “A person is guilty of an offence if he intentionally or recklessly
causes injury to another” – Legislating the Criminal Code: Offences against the Person
and General Principles (Law Commission Consultation Paper no 218). See par 4 of the
draft code.
33 Mtimunye 1994 2 SACR 482 (T) 485.
34 Sinzani 1979 1 SA 935 (E); Erasmus 2005 2 SACR 658 (SCA) par 10.
35 Steenkamp 1960 3 SA 680 (N) 684.
 CRIMES AGAINST BODILY INTEGRITY 453

If the assault is accompanied by an intention to commit some other crime,

such as theft, rape or murder, the separate crime of assault with intent to commit
such a crime (theft, rape or murder) is committed. After the Appellate Division
decision in Chretien36 one must now assume (somewhat reluctantly) that intoxi-
cation may, if the circumstances warrant it, exclude the intention to commit even
ordinary (“common”) assault.
7 Attempt The previous definition of the crime37 equated an attempt to apply
force to the person of another with a threat to apply such force. Accordingly the
view has been propounded that there is no such thing as attempted assault, all
attempts to assault being complete assaults. It is submitted that this proposition
is incorrect. It is based on the fallacious idea that every threat of bodily harm
will give rise to a corresponding fear of such harm on the part of the threatened
person. In certain situations, however, this does not happen; then, it is submitted,
there is only attempted assault, for example, where Y is unaware of the threats
because she is asleep or drugged; where she does not understand or appreciate
them because she is drugged, or where, although she is aware of the threats and
comprehends them, she is completely unperturbed by them because she knows
it is only a toy pistol that X is pointing at her.
Another example of attempted assault is where X, intending to assault Y,
applies force to Y in the belief that Y is alive, whereas Y is in fact already dead.
(This would amount to an attempt to commit the impossible.) In Sikhakane38 it
was held that there is such a crime as attempted indecent assault. Indecent assault
has in the meantime been replaced by the new statutory crime of sexual assault.
8 Assault with intent to do grievous bodily harm Under the influence of
English law a number of qualified forms of assault, that is, assault that is quali-
fied by an intention to achieve a certain goal, have developed in our law. Each
of these qualified forms is in fact a separate, substantive crime, not merely an
aggravated form of assault. In order to distinguish assault from the qualified
forms of assault, assault which is not qualified is sometimes referred to as
“common assault” or “ordinary assault”.
The most important of these crimes is the one known as assault with intent to
do grievous bodily harm. All the requirements for an assault set out above apply
to this crime, but in addition there must be intent to do grievous bodily harm.
Whether grievous bodily harm is in fact inflicted on Y is immaterial in deter-
mining liability39 (though it is usually of great importance for the purposes of
sentence). It is simply the intention to do such harm that is in question.
Whether X in fact had intent to do grievous bodily harm is a factual question.
Important factors which may indicate that X had such an intention are, for
example, the nature of the weapon or instrument used, the way in which it was
used, the degree of violence, the part of the body aimed at, the persistence of
the attack, and the nature of the injuries inflicted, if any.40 The crime may be
________________________

36 1981 1 SA 1097 (A).

37 Gardiner and Lansdown 2 1570.
38 1985 2 SA 289 (N).
39 Joseph 1964 4 SA 54 (RA); Dube 1991 2 SACR 419 (ZS) 424.
40 Melrose 1985 1 SA 720 (ZS); R 1998 1 SACR 166 (T) 169i–170c; Mdau 2001 1 SACR 625
(T) 626–627; Bergh 2006 2 SACR 225 (N) 231h–i; Zwezwe 2006 2 SACR 599 (N) 603b–d.
454 CRIMINAL LAW

committed even though the physical injuries are slight. In Joseph,41 for example,
X drove a truck and deliberately swerved towards Y, but did not actually hit
him. X was nevertheless convicted of assault with intent to do grievous bodily
harm. Conversely, the crime committed may be mere common assault even
though bodily harm of a serious nature has in fact been inflicted.42 Dolus
eventualis is sufficient.
The somewhat vague expression “grievous bodily harm” has seldom been
explained in more precise terms by the courts. It need not necessarily be of a
permanent or dangerous nature.43 Thus, merely twisting Y’s arm or merely
attacking her with fists – even if the blows are aimed at her head – is not neces-
sarily indicative of an intention to do grievous bodily harm.44 However, such an
intention can be inferred if X kicks Y in her face with a heavy boot while Y is
lying prostrate,45 if X administers electrical shocks to the body of Y,46 if X lets
loose a vicious dog on Y and the dog bites Y,47 or if X throws acid in Y’s face.48
X may be found guilty of assault with intent to do grievous bodily harm even
though she did not use any instrument such as a knife when she attacked Y, but
used her hands or fists only.49
X may be convicted of assault with intent to do grievous bodily harm on the
ground of not only actually inflicting violence on Y’s body, but also on the
ground of a threat to inflict grievous bodily harm on Y.50 The rule which applies
in this respect is the same as in common (ordinary) assault.
9 Assault with intent to commit another crime There are various other
qualified forms of assault, each constituting a separate offence, consisting of an
assault with intent to commit some other crime, for example, assault with intent
to commit rape, robbery or murder. Obviously, all the requirements for an ordin-
ary assault mentioned above are applicable to these crimes too. In addition, there
must be an intention to commit the further crime.
Whether the existence of all these forms of assault with intent to commit some
other crime is necessary can be questioned, since they almost invariably amount
to nothing more than attempts to commit the further crime (eg attempted rape
or attempted murder). One of the very few instances where assault with intent
to murder does not overlap with attempted murder is where X means to murder
Y by poisoning her, but events have not yet reached the stage where Y has
swallowed the poison. This will be an attempt to murder, but not assault with
the intent to murder.51
________________________

41 1964 4 SA 54 (RA). Intentionally pointing a rifle at a person and firing it, albeit with blank
cartridges, with intent to frighten that person constitutes only common assault – Pasfield
1974 2 PH H92 (A).
42 Bokane 1975 2 SA 186 (NC); R 1998 1 SACR 166 (T) 169i–170c.
43 Mdau 2001 1 SACR 625 (T).
44 Bokane 1975 1 PH H101 (NC); Mgcineni 1993 1 SACR 746 (E).
45 Dube 1991 2 SACR 419 (ZS); Petzer 1992 1 SACR 633 (A).
46 Madikane 1990 1 SACR 377 (N).
47 Smith 2003 2 SACR 135 (T).
48 Erasmus 2005 2 SACR 658 (SCA).
49 Bergh 2006 2 SACR 225 (N) 231–232.
50 Mtimunye 1994 2 SACR 482 (T) 484i–j.
51 Ken 1966 4 SA 514 (N) 518; Benjamin 1980 1 SA 950 (A) 958.
 CRIMES AGAINST BODILY INTEGRITY 455

B INTIMIDATION
1 General The Intimidation Act 72 of 1982, as amended, criminalises certain
forms of conduct amounting to intimidation. The Act creates two crimes relating
to intimidation. The first one is created in section 1(1) and the second in section
1A(1). The purpose of these crimes is to punish people who intimidate others to
conduct themselves in a certain manner, such as not to give evidence in a court,
not to support a certain political organisation, not to pay their municipal accounts
or to support a strike action. The crime may overlap with certain other crimes,
such as extortion and assault.
It is well known that intimidation is rife in South Africa, but it is a pity that
very few people seem to be prosecuted for the crimes created in this Act. One
of the reasons for this is that many people who have been subjected to intimi-
dation are, precisely because of the intimidation, afraid of laying criminal charges
of intimidation or of testifying about the commission of the crime in a court.
2 Crime created in section 1(1) Section 1(1) of the Intimidation Act 72 of
1982, as amended, provides as follows:

“Any person who –

(a) without lawful reason and with intent to compel or induce any person
or persons of a particular nature, class or kind or persons in general to
do or to abstain from doing any act or to assume or to abandon a
particular standpoint–
(i) assaults, injures or causes damage to any person; or
(ii) in any manner threatens to kill, assault, injure or cause damage to
any person or persons of a particular nature, class or kind; or
(b) acts or conducts himself in such a manner or utters or publishes such
words that it has or they have the effect, or that it might reasonably be
expected that the natural and probable consequences thereof would be,
that a person perceiving the act, conduct, utterance or publication–
(i) fears for his own safety or the safety of his property or the secur-
ity of his livelihood, or for the safety of any other person or the
safety of the property of any other person or the security of the
livelihood of any other person;
(ii) . . . (deleted)
shall be guilty of an offence”

The punishment for the crime is imprisonment for a period not exceeding ten
years or to a fine or to both such fine and such imprisonment. If the provisions
of the Adjustment of Fines Act 101 of 1991 are taken into account, the max-
imum fine that may be imposed is R120 000 × 10 = R1.2 million in the case of
a Magistrate’s Court which is not a Regional Court, and in the case of a Re-
gional Court R600 000 × 10 = R6 million.
Subsection (2) of section 1 provides that X bears the onus of proving the
existence of a lawful reason as referred to in subsection (1), unless a statement
clearly indicating the existence of such a lawful reason has been made by or on
behalf of X before the close of the case for the prosecution. If X’s act is covered
456 CRIMINAL LAW

by a ground of justification such as private defence, necessity or official cap-

acity, she will obviously have a lawful reason for her conduct. This onus placed
on X is in all probability unconstitutional, as it is incompatible with the pre-
sumption of innocence set out in section 35(3)(h) of the Constitution.52
3 Discussion of crime created in section 1(1) Paragraph (a) of section 1(1)
punishes the commission of a certain act, whereas paragraph (b) punishes the
causing of a certain condition. Paragraph (a) therefore creates a formally defined
crime whereas paragraph (b) creates a materially defined crime (ie, a result
crime). In order to obtain a conviction of the crime created in paragraph (b) the
prosecution need not necessarily prove that the prohibited result (ie, that a per-
son fears for her safety, etc) necessarily ensued. Instead of the actual ensuing of
the result, it is sufficient that “it might reasonably be expected that the natural
and probable consequences” of the conduct would be that a person fears for her
safety or that the other possible consequences which are mentioned ensue. An
example of conduct punishable under section 1(1)(b) is where an accused, after
being convicted and sentenced, tells the judge or magistrate that if she comes
out of prison, she will kill her (the judge or magistrate).
Paragraph (b) is wide enough to cover cases where X had already committed
the particular act aimed at intimidating a certain group of people, but has not
yet succeeded in bringing the intimidatory message to the attention of the group.
An example of such action is where X had drawn up and printed a pamphlet but
has not yet succeeded in distributing the pamphlet among the members of the
group of people she wishes to influence. Paragraph (b) is also wide enough to
cover cases where, because of the very intimidation, the victims of the intimi-
dation are not prepared to come forward and give evidence that X’s conduct
resulted in their fearing for their own safety or, for example, the safety of their
property.
Paragraph (a) expressly requires intention for a conviction of the crime cre-
ated in that paragraph. As far as the crime created in paragraph (b) is concerned,
intention is not expressly required. The words in that subsection “that it might
reasonably be expected that the natural and probable consequences thereof
would be that . . .” embodies an objective test, which is difficult to square with
the subjective test which the courts apply to determine the existence of intention.
The use of the words “that it might reasonably be expected” in the paragraph
means that X could be guilty of the crime created in the paragraph only if the
reasonable person would have foreseen the result as the natural and probable
consequence of her conduct. It follows from this that, in order to secure a con-
viction of contravention of this paragraph, it is sufficient to prove culpability in
the form of negligence.
The crime created in section 1(1)(b) in particular is disconcertingly widely
formulated. It not only overlaps cases of assault in the form of the inspiring of
fear of immediate personal violence, but may even be construed as creating
________________________

52 Cf the decisions of the Constitutional Court in cases such as Zuma 1995 2 SA 642 (CC);
Mbatha 1996 1 SACR 371 (CC); Bhulwana 1995 2 SACR 748 (CC); Julies 1996 2
SACR 108 (CC); Ntsele 1997 2 SACR 740 (CC). In Motshari 2001 1 SACR 550 (NC)
554c–d the court obiter regarded the onus placed on X by s 1(2) as unconstitutional, and
in Tsotsi 2004 2 SACR 273 (NC) 242f the court agreed with this view.
 CRIMES AGAINST BODILY INTEGRITY 457

some form of negligent assault.53 In Motshari 54 it was held that section 1(1)(b)
does not apply to a mere quarrel between live-in lovers taking place within the
confines of their dwelling-place. The courts have expressed the view that in mat-
ters involving private quarrels the prosecution should rather charge X with having
committed a common-law crime (such as assault) or with having contravened a
provision of the Domestic Violence Act 116 of 1998 instead or resorting to a
prosecution under section 1(1)(b).55
In Cele56 the court described the provisions of section 1(1)(b) as “an astonish-
ing piece of legislation” and “far-reaching”, and held that the wording of the
provision should therefore be interpreted restrictively. Although the section does
not require intention for a conviction under section 1(1)(b), it must, according
to the court, be proven that X uttered the words forming the subject-matter of the
accusation with the intention that they should mean what they profess to mean.
In this case X said to Y: “We will crucify you”. The court held that, given the
context in which they were uttered, the words did not amount to the commission
of the crime, because X did not mean the words to mean literally what they
meant, but only what they meant figuratively, and that the words only amounted
to “a meaningless threat uttered in the heat of the moment”. One can agree with
the court’s exposition of the law, but the correctness of the application of the
rules to the facts, that is, the interpretation placed upon the words by the court,
can be seriously questioned.57
4 The crime created in section 1A(1) Section 1A(1) of the Act creates a
second crime of intimidation by providing as follows:

“Any person who with intent to put in fear or to demoralize or to induce

the general public, a particular section of the population or the inhabitants
of a particular area in the Republic to do or to abstain from doing any act,
in the Republic or elsewhere–
(a) commits an act of violence or threatens or attempts to do so;
(b) performs any act which is aimed at causing, bringing about, promoting
or contributing towards such act or threat of violence, or attempts, con-
sents or takes any steps to perform such act;
continued
________________________

53 In Motshari supra 554i–j the court quotes a writer (Mathews) as speaking of the “cosmic
scope” of the offence. Plasket and Spoor 1991 Industrial Law Journal 747 752, state: “As
astonishing is the fact that any attempt to commit a crime against a person or property can
be converted into the offence of intimidation.” In Holbrook [1998] 3 All SA 597 (E) 601b–c
the court stated: “The section is so widely couched that it may well be construed that a per-
son who throws a cat into a swimming pool may well be guilty of an offence if the owner
of the cat or any other person, previewing the event, would fear for the cat’s safety.” The
court also remarked (603b–c) that “our prima facie view is that the section is an unneces-
sary burden on our statute books and its objectives could probably be attained by the
enforcement of common-law sanctions”. This view of the crime was endorsed by the court
in Motshari supra 556a.
54 2001 1 SACR 550 (NC) 560b–c.
55 Motshari supra 556a, 560b; Holbrook supra 602–603.
56 2009 1 SACR 59 (N) par 11, 13.
57 In his discussion of the judgment Hoctor 2009 SACJ 92 and 2009 Annual Survey of SA
Law 310 is likewise sceptic about the correctness of the conclusion reached by the court.
458 CRIMINAL LAW

(c) conspires with any other person to commit, bring about or perform any
act or threat referred to in paragraph (a) or act referred to in paragraph
(b), or to aid in the commission, bringing about or performance there-
of; or
(d ) incites, instigates, commands, aids, advises, encourages or procures
any other person to commit, bring about or perform such act or threat,
shall be guilty of an offence.

The punishment for the crime is a fine which the court may, in its discretion,
deem fit, or imprisonment for a period not exceeding 25 years, or both such fine
and such imprisonment. If the provisions of the Adjustment of Fines Act 101 of
1991 are taken into account, the maximum fine that may be imposed is R120 000
× 25 = R3 million in the case of a Magistrate’s Court which is not a Regional
Court, and in the case of a Regional Court R600 000 × 25 = R15 million.
Section 1A(2) and (3) places an onus upon X of proving that she lacked the
intention of achieving the purposes set out in subsection (1). It is submitted that
this onus is unconstitutional since it is incompatible with the presumption of
innocence set out in section 35(3)(h) of the Constitution.
The word “violence” in section 1A is defined in subsection (4) as including
the infliction of bodily harm upon or the killing of, or endangering of the safety
of, any person, or the damaging, destruction or endangering of property.
5 Discussion of crime created in section 1A(1) The crime created in section
1A(1) largely overlaps the crime created in section 1(1). However, the two
crimes do not completely overlap: intimidation of an individual (as opposed to
a group of persons) is covered by section 1(1) only. In section 1A(1) the em-
phasis is on intimidation of the general public, a particular section of the popu-
lation or the inhabitants of a particular area.58 This crime covers a wider field of
conduct than the crime created in section 1(1), and the punishment prescribed
for a contravention of it is also more severe than that prescribed for a contra-
vention of section 1(1).

C POINTING A FIREARM

1 Definition Section 120(6) of the Firearms Control Act 60 of 2000

provides that it is a crime to point–
(a) any firearm, an antique firearm or an airgun, whether or not it is loaded
or capable of being discharged, at any other person, without good
reason to do so; or
(b) anything which is likely to lead a person to believe that it is a firearm,
an antique firearm or an airgun at any other person, without good
reason to do so.
________________________

58 One of the reasons for the insertion of the words “general public, a particular section of
the population or the inhabitants of a particular area” in s 1A(1) is probably the judgment
in Mohapi 1984 1 SA 270 (O), which drew attention to certain deficiencies in the earlier
definition of the statutory crime.
 CRIMES AGAINST BODILY INTEGRITY 459

Although the subsection creates two different crimes, they are so closely related
that it is convenient to discuss them as a single crime.
2 Element of crime The elements of the crime are the following: (a) the
pointing of (b) a firearm or other specified article (c) at any person (d ) unlaw-
fully and (e) intentionally. The crime created in this subsection may overlap
with the crime of assault in the form of the inspiring of fear of immediate per-
sonal violence.
3 “To point . . . at” The proscribed act consists simply in pointing the fire-
arm or article described in the subsection at somebody else. In order to secure a
conviction the state need not prove any of the following: (a) that X fired a shot;
(b) that the firearm or article was loaded; or (c) that the firearm or article was of
such a nature that it could be discharged, in other words that it was capable of
firing a shot.
The expression “point at” is capable of being interpreted in more than one
way. It may, firstly, be interpreted narrowly, as meaning the pointing of the
firearm at Y in such a way that, if discharged, the bullet would hit Y. It may,
secondly, be interpreted more broadly as meaning the directing of the firearm
towards Y in such a way that if it were discharged, the bullet would either
strike Y or pass in her immediate vicinity.
In Xabendlini59 the Supreme Court of Appeal held – correctly, it is submitted
– that it is the broad interpretation which is the correct one. Such an interpret-
ation is more in accordance with the intention of the legislature, namely to protect
the public from the dangers inherent in the handling of firearms. Furthermore,
the arousal of fear in the mind of Y of being struck by the bullet, would exist
irrespective of proof that the bullet would have actually struck her or just missed
her. Further, the narrow construction of the expression would make it unduly
difficult for the state to prove the commission of the crime, since it would be
extraordinarily difficult to prove beyond reasonable doubt that if the bullet had
been fired, it would actually have hit Y and not merely missed her by millimetres.
4 A firearm, etcetera What must be pointed is a firearm, an antique firearm
or an airgun (paragraph (a)); or anything which is likely to lead a person to
believe that it is a firearm, an antique firearm or an airgun (paragraph (b)). The
Act gives a long, technical definition of the word “firearm”. This definition has
already been set out above in the discussion of the crime of unlawfully possess-
ing a firearm,60 and will therefore not be repeated here. The effect of paragraph
(b) of subsection (6) is that X may commit the offence even if she points a toy
pistol at Y, provided the toy pistol is such that it is likely to lead a person to
believe that it is a real pistol.
5 “Any other person” The firearm or article as described in the Act must be
pointed at a person. Thus, to point it at, for example, an animal cannot lead to a
conviction.
________________________

59 Case no 608/10 [2011] SASCA 86, 27 May 2011. See par 7 of the judgment. In this case
the court preferred the broad interpretation followed in Humphries 1957 2 SA 233 (N)
234D-G and Hans 1998 2 SACR 406 (E) 411-412 and rejected the narrow approach fol-
lowed in Van Zyl 1993 1 SACR 338 (C) 340g.
60 Supra XIII D 2 (d).
460 CRIMINAL LAW

6 Unlawfulness The requirement of unlawfulness is not specifically men-

tioned in the definition of the offence in subsection (6), but the words “without
good reason to do so” in the definition are wide enough to incorporate grounds
of justification. It is clear that X will not be guilty of the crime if, for example,
she points a firearm at another while acting in private defence61 or if X is a
police officer lawfully effecting an arrest.
7 Intention Intention is not expressly required in the definition of the offence
in subsection (6). It is, however, highly unlikely that the legislature intended to
create a strict liability offence. It is also unlikely that it could have intended
mere negligence to be a sufficient form of culpability, since the words “point
at” prima facie denote intentional behaviour. In Hodgkinson62 it was held – cor-
rectly, it is submitted – that intention is a requirement for a conviction of this
crime.
This means that X must know, first, that what she is handling is a firearm,
antique firearm, airgun or anything which is likely to lead a person to believe
that it is such an article. Secondly, X must be aware of the fact that she is point-
ing the weapon at another person. Thus, if she thinks that she is pointing it at an
animal or an inanimate object, she lacks intention. Thirdly, she must be aware
of the fact that there is no “good reason” for her conduct and that it is unlawful,
that is, not covered by a ground of justification.
Mere negligence is not sufficient. It is submitted that, according to general
principles, intention in the form of dolus eventualis is sufficient. The fact that X
did not intend to kill or injure Y is, of course, no defence, for the conduct pro-
scribed in the subsection is limited to the mere pointing of a firearm at some-
body else, and in the absence of any provision to the contrary in the wording of
the crime, the intention required for a conviction does not refer to circumstances
not included in the definitional elements of the offence.
8 Punishment According to section 121, read with Schedule 4 of the Act,
the punishment for the crime is a fine or imprisonment for a period not exceed-
ing ten years. If the provisions of section 1(a) of the Adjustment of Fines Act
101 of 1991 are taken into consideration, the maximum fine is R120 000 × 10 =
R1.2 million in the case of a Magistrate’s Court which is not a Regional Court,
and in the case of a Regional Court R600 000 × 10 = R6 million. If the pro-
visions of section 1(b) of the latter Act are taken into account, a fine as well as
imprisonment may be imposed.

________________________

61 In Van Antwerpen 1976 3 SA 399 (T) X pointed a firearm at Y, his assailant. The court
refused to allow X’s defence of private defence on a charge of pointing a firearm. The
court suggested that if X had fired a warning shot, he could have relied on private defence,
but not if he merely pointed the firearm. This reasoning is strange, since the pointing of
the firearm is a less dangerous or harmful method of averting an attack than firing a shot.
For valid criticism of this case, see Van Oosten 1977 De Jure 179; Visser, Vorster and
Maré 186–187; Visser and Van der Westhuizen 194–196.
62 2010 2 SACR 511 (NG) par 27. In par 28 the court erroneously relied on the words “with-
out good reason” in the definition of the crime as ground for deciding that intention is
required. These words do not refer to the culpability requirement, but to the requirement
of unlawfulness.
 CHAPTER
XVI

CRIMES AGAINST DIGNITY

AND REPUTATION

A CRIMEN INIURIA

1 Definition Crimen iniuria consists in the unlawful, intentional and

serious violation of the dignity or privacy of another.1

2 Elements of crime The elements of the crime are the following: (a) the
infringement of the dignity or privacy of another (b) which is serious, (c) un-
lawfulness and (d ) intention.
3 Origin, overlapping According to the traditional common-law interpret-
ation, an iniuria consisted in the unlawful and intentional violation of the dig-
nitas, fama (reputation) or corpus (physical security) of another.2 The crime of
crimen iniuria is committed when the first of these three legal interests is vio-
lated.3 If the second and third interests are impaired, the crimes committed are
criminal defamation and assault (in its various forms) respectively.
The crime may overlap with criminal defamation if the conduct complained of
constitutes impairment of both another’s dignity and of his reputation.4 X may
then be charged with either of these crimes.5 It may also overlap with assault, for
an act which impairs bodily security may also impair dignity.6 To kiss a woman

________________________

1 Sharp 2002 1 SACR 360 (Ck) 372b; Mostert 2006 1 SACR 560 (N) 571b–c. The reason
why the definition mentions both dignity and privacy as the interests violated by the crime
is explained infra par 4. On the requirement that the violation must be serious, see infra
par 10.
2 D 47 10 2; Voet 47 10 1; De Villiers 27; Jack 1908 TS 131 132; Umfaan 1908 TS 62 66;
Chipo 1953 4 SA 573 (A) 576B.
3 Jana 1981 1 SA 671 (T) 675.
4 Chipo supra 614E; Walton 1958 3 SA 693 (R) 696.
5 Xabanisa 1946 EDL 167 169; Chipo 1953 3 SA 602 (R) 614.
6 S 1955 3 SA 313 (SWA); Brereton 1971 1 SA 489 (RA).

461
462 CRIMINAL LAW

without her consent may amount to either assault or crimen iniuria.7 Sexual
assault may also constitute crimen iniuria.8
4 Interests protected The interests protected by this crime are usually desig-
nated by the term dignitas, but this is a technical term and it would be wrong to
restrict its meaning to “dignity” as ordinarily understood.9 Dignitas is a vague
term, which broadly covers all objects protected by the rights of personality,
other than reputation and bodily integrity.10 The word dignitas is merely a
formal, collective description of all the rights or interests protected here. In
view of their divergent characters it is difficult, if not impossible, to reduce all
these rights or interests to one single concept.
For example, it can be argued that the concept of privacy cannot be included
in the concept of dignity. It is submitted that this argument is correct, for the
right to privacy can be infringed without Y’s being aware of it, whereas an
infringement of a person’s dignity or right to self-respect is conceivable only if
Y is aware of X’s act. This distinction between privacy and the other possible
elements of dignitas is borne out by the decisions of the courts: this is the only
acceptable explanation for the fact that in the “peeping Tom” cases (which are
cases of invasion of privacy) the courts regard it as immaterial that Y was
unaware of being watched.11 In cases of impairment of a person’s dignity (self-
respect or mental tranquillity) awareness by Y of X’s conduct is essential, and
Y’s personal reaction is in fact taken into account.12
The South African Constitution recognises a person’s right to dignity and his
right to privacy in different sections. Section 10 recognises a person’s right to
dignity and section 14 his right to privacy.
Nevertheless, the courts undoubtedly regard both dignity and privacy as being
protected by this crime (crimen iniuria). Therefore, if one must use the tech-
nical term dignitas as a description of the interests protected, one should view it
as including both a person’s dignity and his privacy. For this reason the Latin
word dignitas was avoided in the definition of the crime given above; in its place
the words “dignity” and “privacy” were used.
The exact meaning of “dignity” has never been defined by the courts, though
a fair inference may be drawn from case law that “dignity” includes both “self-
respect” and “mental tranquillity”.13
5 Violation of dignity in general The crime can be committed either by
word or by deed. Although many or perhaps most cases of crimen iniuria
________________________

7 Cf M 1947 4 SA 489 (N) 492; S 1955 3 SA 313 (SWA) 315.

8 Cf the facts in S 1948 4 SA 419 (G); Muvhaki 1985 4 SA 302 (Z).
9 Holliday 1927 CPD 395 400.
10 Umfaan supra 66–67; Holliday supra 402.
11 Holliday supra; Daniels 1938 TPD 312.
12 Sackstein 1939 TPD 40 44; Olakawu 1958 2 SA 357 (C) 359–360.
13 See Holliday 1927 CPD 395 400 (“self-respect”), 401 (“right to tranquil enjoyment”);
Terblanche 1933 OPD 65 68; Tanteli 1975 2 SA 772 (T) 775 (“his proper pride in him-
self ”). The description of dignitas in De Villiers 24 (which was quoted with approval in
the leading case of Umfaan supra 67) is as follows: “that valued and serene condition in
his social and individual life which is violated when he is, either publicly or privately,
subjected by another to offensive and degrading treatment, or when he is exposed to ill-
will, ridicule, disesteem or contempt”.
 CRIMES AGAINST DIGNITY AND REPUTATION 463

involve some taint of sexual impropriety, the crime is not confined to insults of
such a nature. Again, although many instances of crimen iniuria involve con-
duct by a male towards a female, X may be either male or female, and the same
applies to Y. An attack, not against Y himself, but against some group to which
he is affiliated (eg his language group, his religion, race or nationality) will nor-
mally not constitute a violation of his dignitas, unless there are special circum-
stances from which an attack on his self-respect can be deduced.14
6 Violation of dignity – subjective dimensions The act consists in the vio-
lation of another’s dignity or privacy. In order to determine whether there has
been an infringement of another’s dignity, both a subjective and an objective test
are applied.
The subjective test is the following: In instances of infringement of dignity (as
opposed to infringement of privacy) Y must (a) be aware of X’s offending
behaviour and (b) feel degraded or humiliated by it.15 Dignity, self-respect and
mental tranquillity describe subjective attributes of a person’s personality. For
example, the mental tranquillity of the timid will be more easily disturbed than
that of the robust. In addition, an individual’s self-respect is intimately con-
nected with his particular station in life and his moral values.16 There is, how-
ever, the following exception to this rule: where Y is a young child or a mentally
defective person, he would not be able to understand the nature of X’s conduct,
and consequently, would not be able to feel degraded by it. This, however, does
not afford X a defence. For this reason the crime can be committed even in
respect of a young child or a mentally defective person.17
As far as proof of the fact that Y felt degraded is concerned, it is usually
assumed that conduct which offends the sensibilities of a reasonable person
would also have offended Y’s sensibilities. If, however, it comes to light that for
some reason (such as broad-mindedness or consent) Y did not take any offence
at (ie, did not in any way feel aggrieved or humiliated by) X’s behaviour, a court
will not convict X of the crime.18
In cases which do not deal with violation of Y’s dignity, but with his privacy,
a different criterion applies: here the state need not prove that Y was aware of
X’s conduct. Thus if X peeps at Y while Y is busy undressing, it is accepted
that X had violated Y’s privacy even if Y was unaware of the fact that X was
peeping at him.
7 Violation of dignity – objective dimension In cases of infringement of pri-
vacy (as opposed to dignity), a different rule from the one set out above applies:
here it need not be established that Y was aware of X’s offensive conduct. Thus,
if X watches Y undressing X is taken to have infringed Y’s privacy irrespective

________________________

14 Tanteli 1975 2 SA 772 (T) (uttering disparaging words about Y’s home language).
15 Van Tonder 1932 TPD 90 94; S 1964 3 SA 319 (T) 321B; A 1993 1 SACR 600 (A) 610e–f.
16 Particular attention was paid to Y’s subjective reaction to X’s conduct in Kaye 1928 TPD
463 465; Sackstein 1939 TPD 40 44; Olakawu 1958 2 SA 357 (C) 359–360.
17 D 47 10 3 1; Voet 47 10 4 pr; Huber HR 6 8 3; Holliday supra 401–402. For cases of
crimen iniuria committed in respect of young children, see Schoonberg 1926 OPD 247;
Payne 1934 CPD 301; S 1948 4 SA 419 (G).
18 Curtis 1926 CPD 385; Van Tonder supra; Olakawu supra 360G; A supra 298.
464 CRIMINAL LAW

of whether Y is aware of being watched or not.19 Since feelings such as “mental

tranquillity” and “self-esteem” (which describe dignitas) are highly subjective
and emotional concepts, their existence and intensity may vary from person to
person. A certain person may be hypersensitive and easily take offence, whereas
another may be more robust or broad-minded and not feel affronted if the same
conduct is directed at him. For this reason the law must of necessity apply the
following objective standard: X’s conduct must be of such a nature that it would
offend at least the feelings of a reasonable person. If Y happens to be so timid or
hypersensitive that he takes offence at conduct that would not affront a reason-
able person, the law should not assume that the crime has been committed.
8 Instances of violation of dignity The crime can be committed in many
ways, and what follows is not an exhaustive list. It may be committed by the
indecent exposure of a person’s body in the presence of others.20 It can also be
committed by communicating to somebody else a message containing, expressly
or impliedly, an invitation to or a suggestion of sexual immorality or impropri-
ety,21 or by sending indecent photos to a woman.22 A mere declaration of love
or affection in circumstances in which there is no suggestion of sexual im-
propriety is not ordinarily considered to be an impairment of the dignity of the
recipient, however unwelcome or irritating it may be.23 The crime can be
committed by addressing Y in language which humiliates or disparages Y, such
as calling Y a “kaffir”24 or a “piccanin”,25 or to call a woman a “whore”26 or a
“bitch”.27
The uttering of words constituting vulgar abuse or gross impertinence may
constitute the crime, provided that the circumstances are sufficiently serious.28
One such case is Momberg,29 in which X received a parking ticket from Y, a
traffic officer. Because he thought this was unjust, he publicly swore at and
abused Y. He was convicted of the crime.
Unlike the crime of criminal defamation,30 it is not required for a conviction
of crimen iniuria that X’s injurious words or conduct should have come to the
attention of people other than Y. The reason for this is that Y’s dignity may be
infringed even if a third party was unaware of it. On the other hand, the fact that

________________________

19 Holliday 1927 CPD 395; Daniels 1938 TPD 312.

20 Eg J 1953 3 SA 494 (E); A 1991 2 SACR 257 (N).
21 Eg Olakawu 1958 2 SA 357 (C) 360; Walton 1958 3 SA 693 (R).
22 James 1960 R and N 159.
23 Sackstein 1939 TPD 40 43, 44; Olakawu supra 360B–C.
24 Steenberg 1999 1 SACR 594 (N).
25 Mostert 2006 1 SACR 560 (N) 573a–b.
26 Ryan v Petrus 2010 1 SACR 274 (E) 280i–j.
27 Ryan v Petrus supra 281b-282f. Contra Sharp 2002 1 SACR 360 (Ck) 372. It is submit-
ted that Sharpe was wrongly decided, for the reasons set out in Ryan v Petrus supra
281b–282f. The use of the word “bitch” cannot merely be regarded as vulgar abuse.
28 Voet 47 10 8; Walton supra; S 1964 3 SA 319 (T). For cases in which vulgar abuse was
regarded as sufficiently serious to warrant a conviction, see Lewis 1968 2 PH H367 (T);
Momberg 1970 2 SA 68 (C); M 1979 2 SA 25 (A).
29 1970 2 SA 68 (C).
30 Infra XVI B.
 CRIMES AGAINST DIGNITY AND REPUTATION 465

X’s words were uttered in the company of others who heard them is not com-
pletely irrelevant: it is a factor affecting the gravity of the infringement of Y’s
dignity. It is conceivable that Y may not feel particularly aggrieved if X’s words
did not come to the notice of any third party, but that he will feel aggrieved if
they did indeed come to other people’s notice.
Assaults which violate Y’s dignity also constitute crimen iniuria, although a
charge of crimen iniuria will be laid only if the impairment of dignity is more
serious than the impairment of bodily security,31 as in Ndlangisa,32 where X
spat in Y’s face. If a stranger kisses or embraces a woman without her consent
he may, depending upon the circumstances, commit crimen iniuria,33 and the
same applies to persons staring at or following a woman.34 Depending upon the
circumstances, the position might be the same if Y is a male.
Crimen iniuria is a materially defined crime (a result crime). What is punished
in terms of this crime is not a particular type of act, but any conduct that results
in Y’s dignity or privacy being impaired.35 The crime can also be committed
through an omission, as where X, a policeman on duty, sees Z behaving in a
way that impairs Y’s dignity, but, contrary to the legal duty resting on him as a
policeman, fails to stop X from continuing with his behaviour.36
9 Infringement of privacy This manner of committing the crime merits
separate treatment since some of its facets are governed by rules of their own,
as will presently be seen. The most common form of infringement of privacy
constituting crimen iniuria is the so-called “peeping Tom” case, as where a man
peeps through a window or other aperture at a woman undressing.37 Another
illustration is the planting of a listening-in device in a person’s private apart-
ment and listening in to his private conversations.38 A person’s privacy may
conceivably be infringed in a variety of other ways, for example, by the open-
ing and reading of a confidential postal communication addressed to him, and
by generally prying into his private life in an unwarranted manner, by means of
apparatus such as cameras, telescopes or “bugging devices”.
The right of privacy is, however, not an unlimited right, and in certain circum-
stances intrusions on a person’s privacy or what he regards as his privacy will
be allowed by the law. What these circumstances will be is extremely difficult
to predict, and in deciding the point a court will have to take into consideration
the prevailing boni mores or modes of thought in society at a given place and
time.39 In I 40 it was held that X, a private investigator, did not commit the crime
when, at the instance of a suspicious spouse, he peeped through Y’s window
into a room where the other spouse was in bed with Y. He was trying to obtain
________________________

31 Brereton 1971 1 SA 489 (RA), where a woman was stripped of some of her clothes.
32 1969 4 SA 324 (E).
33 Gosain 1928 TPD 516; S 1955 3 SA 313 (SWA).
34 Van Meer 1923 OPD 77; Mtetwa 1966 1 PH H250 (T).
35 A 1991 2 SACR 257 (N) 273f–g (confirmed on appeal in A 1993 1 SACR 600 (A) 610).
36 A 1991 2 SACR 257 (N) 273 (confirmed on appeal in A 1993 1 SACR 600 (A) 610).
37 Holliday 1927 CPD 395; Daniels 1938 TPD 312; R 1954 2 SA 134 (N).
38 A 1971 2 SA 293 (T).
39 A 1971 2 SA 293 (T) 299; I 1976 1 SA 781 (RA) 786, 788.
40 Supra.
466 CRIMINAL LAW

evidence of adultery which the suspicious spouse wanted to use in a subsequent

divorce case. His purpose in intruding on Y’s private sphere was merely a bona
fide attempt to obtain evidence of adultery, and he went no further than was
necessary for his purpose. The court held that in the circumstances of the case
his infringement of Y’s privacy was not unlawful.
In cases of unwarranted intrusion on privacy, as opposed to cases where Y’s
dignity is violated, it is immaterial whether Y is aware of the intrusion.41 In
addition, X is guilty of the completed crime even if, for example, the woman
happens to be fully clad while she is being watched through her bedroom win-
dow, or the conversation which the “bugging device” overhears does not reveal
anything shameful or scandalous.42 This is because the mere unwarranted intru-
sion on Y’s privacy is here sufficient to constitute the crime.
10 Violation of dignity or privacy must be serious Crimen iniuria is
punishable only if the violation of Y’s dignity or privacy is of a sufficiently
serious or reprehensible character to merit punishment in the interests of so-
ciety.43 In Walton44 the court stated: “In the ordinary hurly-burly of everyday
life a man must be expected to endure minor or trivial insults to his dignity.”
Although the requirement that the violation of the dignitas should be serious
may be vague, it is nevertheless necessary.45
It is difficult to propound hard and fast rules for distinguishing the trivial
iniuriae from the serious ones. What is of a sufficiently serious character depends
to a large extent upon the modes of thought and conduct prevalent in a particu-
lar community at a particular time and in a particular place46 and is, in prin-
ciple, determined by an objective test.47 Much will depend upon the relationship
________________________

41 Holliday 1927 CPD 395 401–402; Daniels 1938 TPD 312.

42 A 1971 2 SA 293 (T) 298C.
43 S 1955 3 SA 313 (SWA) 316; Jana 1981 1 SA 671 (T) 676A; Seweya 2004 1 SACR 387
(T). It has sometimes been explicitly stated that the test of gravity is whether the conduct
is likely to have results that may detrimentally affect the interests of the state or the com-
munity – Walton 1958 3 SA 693 (R) 695; Momberg 1970 2 SA 68 (C) 71H; Jana 1981 1
SA 671 (T) 676A. For a critical discussion of this requirement see Van der Berg 1988
THRHR 54 ff.
44 1958 3 SA 693 (R) 695. See also S 1964 3 SA 319 (T) 322H: “Now, not every insulting
word can be made the subject of a criminal charge. Chaos in the courts would otherwise
result.”
45 In Bugwandeen 1987 1 SA 787 (N) 796A the Natal court, after an examination of the
authorities, rejected the requirement that the iniuria be serious in order to be punishable,
stating that this requirement was so nebulous as to lead to arbitrariness in its application.
It is submitted, with respect, that the court’s view is incorrect. It is hardly reconcilable with
the court’s own statement immediately afterwards that the impairment of dignity should
be “real and substantial”; that iniuriae of a trivial nature should be excluded on the prin-
ciple de minimis non curat lex; and that “[i]n deciding whether the injuria . . . merits a con-
viction of crimen injuria, the Court has to some extent to pass a value judgment in regard
to the reprehensibility . . . viewed in the light of the principles of morality and conduct
generally accepted as the norm in society” (796B–D). Why should a court employ these
criteria if even slight iniuriae were punishable? It would seem that the difference between
the court’s approach and that advocated above (viz that only serious iniuriae are punish-
able) is more a matter of terminology than of substance.
46 Walton 1958 3 SA 693 (R) 695–696; A 1971 2 SA 293 (T) 299A–B.
47 Olakawu supra 360G; A 1971 2 SA 293 (T) 298.
 CRIMES AGAINST DIGNITY AND REPUTATION 467

between the parties, such factors as the age and sex of X and Y, the persistence
of the conduct complained of, the degree of publicity attached to the conduct,
the relative social positions of the two parties, the fact that the insult is addressed
to a public official such as a traffic officer or a policeman who is acting in his
official capacity,48 or the fact that the insult has a racial connotation.49 If a
woman is insulted by a stranger, this will be viewed more seriously than when
she is insulted by somebody she knows.50 If a man indecently exposes himself
to young and immature girls this may be viewed in a more serious light than
such conduct directed at adult women.51
11 Unlawfulness Several possible grounds of justification may negative the
otherwise unlawful character of the act, for example, consent,52 necessity and
self-defence.53 If someone violates another’s privacy the infringement may also
be justified by the fact that he is acting in an official capacity or with legal
authority (eg a policeman searching a house for evidence of a crime).
12 Intention The crime can be committed intentionally only, and negligence
can never be sufficient.54 Intoxication may result in X’s not being aware that he
is violating Y’s dignity or privacy.55 X must know that he is violating Y’s dig-
nity, and this implies that he must know that Y did not consent to his conduct.

B CRIMINAL DEFAMATION
1 Definition Criminal defamation consists in the unlawful and inten-
tional publication of matter concerning another which tends to injure his
reputation.56

2 Elements of crime The elements of the crime are the following: (a) the
publication (b) of a defamatory allegation concerning another (c) unlawfully
and (d) intentionally.
3 Origin The crime, which is known as “criminal defamation” in order to
distinguish it from civil defamation, is a form of iniuria. It differs from other
forms of iniuriae in that it is not a person’s bodily security (corpus) which is
injured, nor his dignitas (dignity), but his good name or reputation ( fama)
amongst his fellow-men.57 For about a century it was uncertain whether verbal
________________________

48 Momberg 1970 2 SA 68 (C); Bugwandeen 1987 1 SA 787 (N). In Sharp 2002 1 SACR 360
(Ck) X called Y, a female police officer, a “bitch”. The court held (372) that X had not
committed crimen iniuria because Y must have been called such a name on different occa-
sions in the course of exercising her profession. It is submitted that this judgment is incor-
rect. Police officers, including female officers, are also entitled to protection of their dignity.
49 M 1979 2 SA 25 (A) 28; Bugwandeen supra.
50 Van Meer 1923 OPD 77 80; Olakawu supra 359, 360F.
51 Kobi supra 1108; M 1915 CPD 334 340.
52 Curtis 1926 CPD 385 388–389; Heyneke 1959 2 PH H185 (O).
53 Ndlangisa 1969 4 SA 324 (E).
54 S 1964 3 SA 319 (T) 321. For cases of dolus eventualis, see A 1971 2 SA 293 (T) 299F
and K 1975 3 SA 446 (N) 451.
55 Sharp 2002 1 SACR 360 (Ck) 372h–i.
56 Hoho 2009 1 SACR 276 (SCA) par 23.
57 For the classification of iniuriae in our common law, see supra XV A 3.
468 CRIMINAL LAW

defamation (slander) was criminal. In 1951 this uncertainty was resolved in

Fuleza58 when the Appellate Division held that it was. Though the crime is of
Roman-Dutch origin,59 English law has exerted a considerable influence on its
development, especially via the civil cases of defamation. Criminal defamation
covers both defamation in writing (libel) and verbal defamation (slander).60
4 Existence of crime confirmed Before 2009 it was uncertain whether the
crime existed in our law. Various writers argued that the crime no longer existed
or that it ought no longer to exist.61 Prosecutions for this crime are rare, despite
the fact that defamation of other people occurs daily. Since 1953 there has been
no reported judgment in which a person has been convicted of this crime.62
People who are defamed may claim damages from the alleged defamer in the
civil courts. In everyday life many people are defamed, sometimes seriously, by
others without the defamer being prosecuted for criminal defamation in the
criminal courts. The impression one gets is that the prosecuting authorities
charge people with criminal defamation only if the defamed person is a promin-
ent person in society, such as a politician or a judge.63 It is hard to justify this
tendency towards “selective prosecution”.
In 2009 the question whether the crime still exists and whether its existence
is compatible with the provisions of the Constitution came before the Supreme
Court of Appeal in Hoho.64 In a unanimous judgment the court held that the
crime had not ceased to exist because of disuse, that there are no good reasons
why it should not still exist, and that its existence is not incompatible with the
provisions of the Constitution.
The problem with this decision, however, is that it has not removed the criti-
cism that in everyday legal practice the criminal law does not protect every per-
son’s right to a good reputation on an equal basis. The South African prosecuting
authorities, who are already hard pressed to prosecute everybody with commit-
ting the many serious crimes committed in this country, will hardly waste their
precious time to prosecute people who have defamed others who do not hold a
prominent position in society.
If the Supreme Court of Appeal had held that the crime should be restricted
to cases in which a person seriously defames another, there might perhaps still
have been a rational ground for the restriction of prosecutions to really serious
instances of the violation of another’s reputation, as where prominent people in
________________________

58 1951 1 SA 519 (A).

59 D 47 10; Huber HR 6 10 1, 2; Van Leeuwen RHR 4 37 1; Voet 47 10; Matthaeus 47 4;
Van der Keessel 47 10; Decker 4 37 1.
60 Japel 1906 TS 111; McIver 1929 TPD 574. Examples of libel are to be found in Shaw
(1884) 3 EDC 323 and MacDonald 1953 1 SA 107 (T).
61 Van den Berg 1989 SALJ 276; Labuschagne 1990 THRHR 391; Burchell and Milton 741.
See also the discussion in Hoho 2009 1 SACR 276 (SCA) par 16, 32
62 Hoho supra par 8.
63 Cf Revill 1970 3 SA 611 (C) (judge defamed); Modus Publications (Private) Ltd 1998 2
SACR 465 (ZS) (President Mugabe of Zimbabwe defamed). In Hoho supra the speaker
of the Eastern Cape legislative assembly, members of that body as well as cabinet minis-
ters were defamed.
64 2009 1 SACR 276 (SCA), discussed by Hoctor 2013 Obiter 125; 2008 SACJ 254;
Freedman 2009 SACJ 471.
 CRIMES AGAINST DIGNITY AND REPUTATION 469

society are defamed. However, the court in Hoho expressly held that violations
of other peoples reputations are criminal even if the degree of violation is not
serious.65 The court held that, in order to prevent non-serious cases coming
before court, courts can apply the de minimis rule.66 It is, however, difficult to
understand how serious defamation committed against an ordinary person who
does not occupy a prominent position in society, will not be prosecuted merely
by applying the de minimis rule. It is almost certain that prosecutions for this
crime will in practice be restricted to cases of defamation which are of a serious
nature. It is very difficult to agree with the court’s decision that even non-serious
instances of defamation still falls within the ambit of the crime.
5 Publication of defamatory matter A person’s good name or reputation
( fama) can be harmed only if the conduct or words complained of come to the
notice of someone other than Y, in other words, if publication takes place.67 If
the conduct comes to the notice of Y only, it can at most amount to crimen in-
iuria if Y’s dignitas has been impaired. Words are defamatory if they tend to
expose a person to hatred, contempt or ridicule, or if they tend to diminish the
esteem in which the person to whom they refer is held by others.68 Mere “vulgar
abuse” is not likely to lower the reputation of the person to whom it is addressed,
and this would therefore ordinarily not amount to defamation.69
6 Unlawfulness The publication of defamatory matter which is otherwise
prima facie unlawful may be justified on the grounds (a) that it is the truth and
that, in addition, it is for the public benefit that it be made known;70 (b) that it
amounts to fair comment,71 or (c) that the communication is privileged.72 These
grounds of justification do not differ from the well-known defences available to
the defendant in a civil defamation action.
8 Intention X must intend to harm Y’s reputation by the unlawful publi-
cation of defamatory matter concerning him. He must be aware of the fact that
what he says or writes will tend to injure Y’s reputation. This implies that X
must intend the communication to come to the notice of somebody other than
the person to whom it is addressed, and that he must intend the allegation to
refer to Y (not to somebody else). If he thinks that his words are covered by the
defences of truth and public interest, fair comment or privilege, he lacks the
necessary intention.73

________________________

65 Hoho supra par 21-22.

66 On this rule, see supra IV J.
67 Mabona 1935 TPD 407; Gibson 1979 4 SA 115 (D) 142.
68 McIver 1929 TPD 574 578; Revill 1970 3 SA 611 (C) 615–616.
69 Walton 1958 3 SA 693 (R) 696.
70 Revill supra. An accused who relies on this defence must plead it expressly – s 107 of the
Criminal Procedure Act 51 of 1977.
71 Shaw (1884) 3 EDC 323 325; Modus Publications (Private) Ltd supra 154h.
72 Ginsberg 1934 CPD 166 178; ss 58 and 71 of the Constitution of the Republic of South
Africa 108 of 1996.
73 D 47 10 3 2; Maisel v Van Naeren 1960 4 SA 836 (C) 840.
 CHAPTER
XVII

CRIMES AGAINST FREEDOM

OF MOVEMENT

A KIDNAPPING

1 Definition Kidnapping consists in unlawfully and intentionally de-

priving a person of his or her freedom of movement and/or, if such person
is under the age of 18 years, the custodians of their control over the child.1

2 Elements of crime The elements of the crime are the following: (a) the
deprivation of (b) a person’s freedom of movement (or the parental control in
the case of a child) which takes place (c) unlawfully and (d ) intentionally.
3 Appellation The crime is derived from the lex Fabia de plagariis in Roman
law,2 and was known in common law as plagium.3 In South Africa it has in the
past been given many names, such as “manstealing”, “womanstealing”, “child-
stealing”, “plagium”, “kidnapping”, and in Afrikaans “menseroof”, “kinder-
roof ”, “ontvoering”, “vryheidsberowing” and “kinderdiefstal”.4 It is submitted
________________________

1 This definition basically follows that given in Hunt-Milton 539, which was accepted as
correct as far as childstealing (a species of kidnapping) is concerned in Blanche 1969 2
SA 359 (W) 360D. The definition of Hunt-Milton was followed in Mellors 1990 1 SACR
347 (W) 350i–j. The definition in the text was quoted with apparent approval in Els 1986
1 PH H73 (A). In F 1983 1 SA 747 (O) 751–752 the Afrikaans version of the definition
given in the text was quoted with apparent approval. However, the definition quoted in
these authorities used the word “child” instead of the phrase “person under the age of 18
years”, which appear in the definition in the text. The reason why the word “child” has
been replaced by the words “person under the age of 18 years” in the definition in the text
is the provisions of section 17 of the Children’s Act 38 of 2005, quoted and explained
infra par 6.
2 D 48 15; C 9 5; C 9 20.
3 On Roman-Dutch law, see Voet 48 15 Matthaeus 48 12; Moorman 3 3 4; Van der Linden
2 6 3; Van Leeuwen RHR 4 38 4. See also the discussion in Lentit 1950 1 SA 16 (C) 20–24.
4 For cases where the term “manstealing” was employed, see Motati (1896) 13 SC 173
178; Van Niekerk 1918 GWL 89; Mncwango 1955 1 PH H2 (N); Jackson 1957 4 SA 636
(R); Mabrida 1959 1 R and N 186. In Motati the court stressed that the word “man” (in
the term “manstealing”) was used in the generic sense of “a human being”. In Levy 1967
[continued]

471
472 CRIMINAL LAW

that the most satisfactory description of the crime is simply “kidnapping”, this
being the term which most readily conveys to the layman the character and
most important essentials of the crime.5 A human being cannot be the object of
theft, and therefore this crime is not a form of theft; descriptions of the crime
such as “manstealing”, “womanstealing” and “childstealing” ought therefore to
be avoided. It is submitted that the best Afrikaans equivalent of “kidnapping” is
“menseroof ”.6
The crime can be committed in respect of a man, woman or child.
4 Relation to other crimes It is now firmly established that “childstealing”
is not a separate crime but merely a species of kidnapping.7 The result of the
inclusion of childstealing in the crime of kidnapping is that kidnapping has now
assumed a dual character: it may infringe either of two interests, namely a per-
son’s freedom of movement or a parent’s or custodian’s control over a child.
Where a child is removed without either her own consent or that of her parents
both these interests are, of course, infringed.
Kidnapping should not be confused with abduction.8 The latter crime is
committed against parental authority over a minor, whereas kidnapping is in
principle committed against a person’s freedom – and more particularly freedom
of movement. In abduction the minor is removed in order to enable someone to
marry her or to have sexual intercourse with her, whereas in kidnapping X’s
motive for removing Y is immaterial: for the crime to be committed, it is suf-
ficient if X intends to deprive Y of her freedom of movement or Y’s parents or
custodians of their control. Often X’s motive in depriving Y of her freedom is
to demand a ransom for her release,9 but the existence of such an “ulterior pur-
pose” is no requirement for liability, although it is almost invariably a ground
for imposing a more severe sentence.10
If X demands a ransom, she may also be guilty of extortion.11
5 Interest protected Although the interest protected is usually described as
“the liberty of another”12 it is clear that by the term “liberty” is meant liberty in
the sense of freedom of movement only.13 However, the law undoubtedly
________________________

1 SA 351 (W) and Long (1) 1969 3 SA 707 (R) the term “kidnapping” was used but in
Long 1970 2 SA 153 (RA) 161C the term plagium was specifically preferred. Gane, in
his translator’s note to Voet 48 15, even speaks of “girlstealing”, “boystealing” and
“babystealing”. Some Afrikaans descriptions of the crime are “vryheidsberowing” (De
Wet and Swanepoel 2 ed 255), “menseroof ” (De Wet and Swanepoel 4 ed 271; Van der
Linden 2 6 3; Gomba 1963 4 SA 831 (G) 832) and “kinderroof ” (Lentit supra 17, 26).
5 This term is also employed by the legislature in part III of the 2nd Schedule to the Crim-
inal Procedure Act 51 of 1977.
6 This is also the term used in the Afrikaans text of part III of the 2nd Schedule to the
Criminal Procedure Act 51 of 1977.
7 Motati supra 178; Levy supra 354C; Long 1970 2 SA 153 (RA) 158G, 159F.
8 On abduction, see supra XII B.
9 Levy supra; Blanche supra; Long supra; Naid 1974 3 SA 706 (A).
10 Levy supra 353E; Naidoo supra 715–716.
11 Cf Naidoo supra 715H.
12 Motati (1896) 13 SC 173 178; Levy 1967 1 SA 351 (W) 352H, 353.
13 Naidoo supra 715F, where the Appeal Court referred to the crime as “the unlawful and
intentional deprivation of liberty of movement” (italics supplied).
 CRIMES AGAINST FREEDOM OF MOVEMENT 473

recognises that the crime can also in certain circumstances be committed against
a person who consents to her own removal. This is where a child who already
has the ability to form an independent judgment of her own consents to her own
removal from her parents’ or custodians’ control. Thus, in Lentit14 it was
assumed that Y, a seventeen-year-old girl, was removed willingly, but X’s con-
viction of kidnapping was nevertheless upheld on appeal. Although the term
“child” is invariably employed in cases of “childstealing”, it is clear that “child”
in this respect always means a minor. Where the child has herself consented to
her removal it would be inexact to describe the legal interest violated by the
crime as freedom of movement. What is violated in such cases is the control
exercised over a child by her parents or custodians.
6 Meaning of the words “child” or “minor” Although the word “child” is
always used in cases of so-called childstealing, it would appear that the word
“child” always meant “a minor”. Before 2005 there was no doubt that the word
“child” denoted somebody who was a minor in terms of the common law, that
is, a person below the age of 21 years. However, section 17 of the Children’s
Act 38 of 2005 now provides that a child, whether male or female, becomes a
major upon reaching the age of 18 years. The effect of this provision on the
definition of kidnapping is that the word “minor” as used in the (former) “trad-
itional” definition now means somebody under the age of 18 years.
7 Parent cannot commit crime in respect of own child A parent cannot
commit the crime in respect of his or her own child. Accordingly, if the father
and natural guardian of a child, having divorced his wife, removes the child
from her care in order to keep her in his own care, he does not commit the crime.
This is true even if the court awarded the custody and control of the child to the
mother.15 However, this does not mean that the divorced father can with impun-
ity remove a child from the care of the mother to whom the court has awarded
custody and control, since by so doing he infringes a court order, and may be
guilty of contempt of court.
8 Deprivation of freedom of movement The removal is usually effected by
force, but forcible removal is not a requirement.16 The removal may also be
effected by craft or cunning, as in Long (2),17 where X pretended to be a
photographer’s assistant who had to fetch a little girl from her school to photo-
graph her, and in this way obtained possession of the girl. The crime can also
be committed even though there is no physical removal, as where Y is concealed
or imprisoned where she happens to be.18
9 Duration of deprivation usually irrelevant It is still not perfectly clear
whether deprivation of freedom or control, as described above, must last for a
specific period of time, and, if so, how long this period must be. The duration
of the deprivation has been regarded as a material element of the crime in some

________________________

14 1950 1 SA 16 (C) 18. See also Van Niekerk 1918 GWL 89.
15 Hoffman 1983 4 SA 564 (T).
16 Fraser 2005 1 SACR 455 (SCA) 462g–h.
17 1969 3 SA 713 (R). See also Naidoo 1974 3 SA 706 (A).
18 Long 1970 2 SA 153 (RA) 158B, 160B; Mellors 1990 1 SACR 347 (W).
474 CRIMINAL LAW

cases,19 and rejected as such in others.20 The weight of authority seems to

favour the view that this “time factor” is immaterial. It is submitted that this is
the correct view. The only relevance which the time factor may have (apart from
affecting sentence) is in distinguishing kidnapping from some cases of assault
involving only a “transient and incidental seizure” of a person for a short period.21
Deprivation for a short period of only some hours ought, therefore, to be suf-
ficient. Where X has kidnapped Y with the object of demanding a ransom it
seems illogical to require that Y’s captivity should last for more than a short
period. X’s very purpose is to obtain the ransom money as soon as possible,
and then to release Y as soon as possible.22 The “time element” may sometimes
be of importance in providing evidence of X’s intention.23
10 Unlawfulness An otherwise unlawful deprivation of freedom may be justi-
fied by, for example, official capacity (as where a police officer lawfully arrests
someone) or by consent of the person removed, unless she is a child.
11 Intention X must know that Y has not consented to the removal, or, if Y
is a child, that her parents or custodians have not consented.24 X need not intend
to deprive Y permanently of her freedom of movement; it is sufficient if she
intends to release Y upon payment of a ransom, even if this takes place after a
few hours.25 X’s motive in depriving Y of her freedom of movement or the
parents or custodians of their control is immaterial for the purposes of liability,
although it may affect the degree of punishment.26

________________________

19 Mncwango 1955 1 PH H2 (N); Jackson 1957 4 SA 636 (R) 637 (overnight detention held
to be too short); Mabrida 1959 1 R and N 186 (detention of 24 hours “at the most” held
to be too short).
20 Blanche 1969 2 SA 359 (W) 360; Long 1970 2 SA 153 (RA) 161; Dimuri 1999 1 SACR
79 (ZH) 84. In Blanche the fact that the deprivation lasted only eight hours was held to be
immaterial. In F 1983 1 SA 747 (O) 752 a removal of only 40 minutes was held to be suf-
ficient. In Mellors 1990 1 SACR 347 (W) a deprivation lasting two and a half hours was
regarded as sufficient for a conviction.
21 Long 1970 2 SA 153 (RA) 158B; Dimuri supra 90c–d.
22 This also seems to be the principle underlying the judgment in Blanche supra.
23 Long supra 161A; Mellors supra 351.
24 Van Niekerk 1918 GWL 89 91.
25 Long 1969 3 SA 713 (R) 715–716.
26 Thus, in Motati (1896) 13 SC 173 177 X’s motive in removing the girl was to employ her
as a nurse, and in Lentit 1950 1 SA 16 (C) the 17-year-old girl was taken away to look
after two small children. In Levy supra and Long supra the motive was to demand a ransom.
 CRIMES AGAINST PROPERTY

CHAPTER
XVIII

CRIMES RELATING TO APPROPRIATION

OF PROPERTY

A THEFT

1 Definition A person commits theft if he unlawfully and intentionally

appropriates movable, corporeal property which
(a) belongs to, and is in the possession of, another;
(b) belongs to another but is in the perpetrator’s own possession; or
(c) belongs to the perpetrator but is in another’s possession and such other
person has a right to possess it which legally prevails against the per-
petrator’s own right of possession
provided that the intention to appropriate the property includes an intention
permanently to deprive the person entitled to the possession of the property,
of such property.1
________________________

1 The precise reasons for this definition of the crime appear from the discussion which fol-
lows. The following definition put forward in Gardiner and Lansdown 2 1652 has been
accepted as correct in various decisions, such as Von Elling 1945 AD 234 236; Harlow
1955 3 SA 259 (T) 263; Sibiya 1955 4 SA 247 (A) 250–251, and Kotze 1965 1 SA 118
(A) 125: “Theft is committed when a person, fraudulently and without claim of right made
in good faith, takes or converts to his use anything capable of being stolen, with intent to
deprive the owner thereof of his ownership or any person having any special property or
interest therein of such property or interest.” This definition is unacceptable. It was, for
all practical purposes, taken over from s 1 of the English Larceny Act of 1916, which did
not reflect Roman-Dutch law, and which in any event no longer applies even in England.
Necessary requirements such as unlawfulness and intention are not mentioned, or are
clothed in unacceptable, outdated and vague expressions such as “fraudulently” and “with-
out claim of right made in good faith”. The definition formulated in Hunt-Milton 579, on
the other hand, is too short. It reads: “Theft consists in an unlawful contrectatio with intent
to steal of a thing capable of being stolen.” This is no real definition, but a petitio principii.
The reader remains in the dark about the meaning of contrectatio, “intent to steal” and
[continued]

475
476 CRIMINAL LAW

2 Elements of crime The elements of the crime, applicable to all forms of

the crime, are the following: (a) an act of appropriation; (b) in respect of a cer-
tain type of property; (c) which takes place unlawfully and (d) intentionally
(including an intention to appropriate).
3 Unusual aspects of crime What is today regarded as theft in our law differs
in some important respects from what is regarded as theft in other legal systems,
and in all probability even from what an ordinary lay person would regard as
theft. It is feasible right at the outset to emphasise these unusual aspects of the
crime.
In the first place, theft in our law is not limited to acts in respect of other
people’s property which is in their possession. It also comprises acts in respect
of other people’s property which happens to be in X’s own possession or con-
trol. The following is an example of this type of theft: Fearing that his house
may be burgled while he is away on holiday, my neighbour requests me to keep
a bottle of precious wine belonging to him in my house and to look after it while
he is away. I agree to do so, receive the bottle of wine and put it away in my
house. However, before my neighbour returns from holiday, I drink all the wine
myself. I then commit theft of the wine. This type of conduct, which consists in
appropriating someone else’s property already in X’s possession or control, is
known as embezzlement.2 Unlike most other legal systems, embezzlement in our
law is not a separate crime, but merely a form of theft. In the above definition
of theft in paragraph 1, instances of embezzlement are covered by the words in
paragraph (b): “belongs to another but is in the perpetrator’s own possession”.
Because theft comprises cases of embezzlement, it is not correct to define theft
in our law in terms of the removal of another’s property.
A second unusual characteristic of the crime in our law is that it can be com-
mitted even if X takes back his own property which is temporarily in another’s

________________________

“thing capable of being stolen”. The definition in Hunt-Milton is based partially on the
classical model for the definition of the crime. The definition in the text is based on the
“appropriation model” for the crime. There is more than enough authority in the case law
for the use of the appropriation model. For other, short definitions of theft, see Jona 1961
2 SA 301 (W) 316G; De Jager 1965 2 SA 616 (A) 617 and Visagie 1991 1 SA 177 (A)
181H–I: “ ’n Bondige, en aldus onvolledige, omskrywing van diefstal is die wederregtelike,
opsetlike toe-eiening deur ’n persoon van iemand anders se roerende liggaamlike saak.”
Generally speaking the definition given in the text above covers the most important re-
quirements for the crime as it developed in Roman-Dutch law. However, our courts have
developed a further form of theft which departs from the general requirements for the
crime contained in the definition given above to such an extent that it cannot be accom-
modated in the definition given above. This form of theft can be described as “the un-
authorised appropriation of trust funds”. If one endeavours to incorporate also the latter
form of theft into the general definition of the crime, such an all-embracing definition will
be so long that it will no longer qualify as a “definition” (in the sense of a concise résumé
of the requirements for the crime) of the crime. For this practical reason no attempt was
made to formulate a definition of the crime which also expressly covers the appropriation
of trust funds. Snyman in his A Draft Criminal Code for South Africa formulated a defin-
ition which also covers the appropriation of trust funds (see s 15.1 of the Draft Code).
However, this definition, which is very complete, is so long that it covers two pages!
2 Infra par 12.
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 477

lawful possession, as where X, who has borrowed money from Y, has pledged
his watch to Y as security for the payment of the debt, and then, before paying
his debt to Y, withdraws it from Y’s possession without his consent. In the
above definition of the crime this type of conduct is covered by the words in
paragraph (c). This form of theft may be described as the unlawful arrogation
of the possession of a thing.3 Since such conduct also amounts to theft, it is in-
correct to describe theft in our law in terms of the appropriation of somebody
else’s property.
4 Latin expressions sometimes used Since at least approximately 2000 the
courts have consistently described the essence of theft as an unlawful, inten-
tional appropriation of certain kinds of property. In the past they often used the
old Latin terminology used in the classical texts of Roman and Roman-Dutch
law. The act in theft was referred to as contrectatio, the requirements of un-
lawfulness and awareness of unlawfulness as fraudulosa and the intention
requirement as animus furandi. The use of this Latin terminology has become
outdated and should be avoided. The courts still sometimes use these Latin ex-
pressions. They sound learned and presumably impress a lay person, but ultim-
ately these high-sounding, grandiloquent and allegedly untranslatable Latin
words evade the real issue, namely what exactly the conduct and the intent are
which are made punishable in terms of this crime.4
The crucial requirements of the crime are nowadays simply described with
the aid of the concept of appropriation. The requirement of an act is described
as an act of appropriation and the additional intention required for a conviction
of the crime as an intention to appropriate. This model is applied in the legal
systems on the European continent and to a large extent also in English law
after 1968. The concept of appropriation is flexible enough to encompass all the
different ways in which the crime can be committed according to our common
law sources. It is also perfectly reconcilable with what our courts regard as con-
stituting theft. It is susceptible to systematic analysis, and the word “appropri-
ation” is (unlike contrectatio) also readily understandable to a lay person. What
exactly the concept of appropriation entails will become clear when the act of
appropriation and the intention to appropriate are discussed below.5
5 Different forms of theft Theft can be committed in various ways. One can
distinguish the following four forms of committing the crime:
(a) The removal of property X commits this form of theft if he removes Y’s
property, which is in Y’s (or somebody else’s) possession, and appropriates it.
This form of theft comes nearest to the ordinary lay person’s view of what theft
comprises. This form of theft is set out in subparagraph (a) of the definition of
theft given above.
(b) Embezzlement X commits this form of theft if he appropriates Y’s prop-
erty which happens already to be in X’s possession or control. This form of
theft is set out in subparagraph (b) of the definition of theft given above.
________________________

3 Infra par 13.

4 The views expressed in this regard in Harper 1981 2 SA 638 (D) 665 are in agreement
with the view adopted in the text.
5 Infra pars 7(b) and 10(b).
478 CRIMINAL LAW

(c) Arrogation of possession X commits this form of theft if he takes his

own property from the possession of Y, who has a right to its possession which
prevails against the owner, for example, by virtue of a lien or a pledge. Here X
steals, as it were, his own property. The following is an example of the commis-
sion of this form of the crime: X wishes to borrow money from Y. Y is prepared
to lend X the money only if X gives him his (X’s) watch as security for the
repayment of the debt. X gives Y his watch and Y lends X the money. In terms
of the agreement, X will get his watch back only after he has repaid Y the
amount of money owing. However, before X has repaid Y the money, X takes
the watch into his own possession without Y’s consent. This type of theft was
known in Roman law as furtum possessionis. This form of theft is set out in
subparagraph (c) of the definition of theft given above.
(d ) Theft of credit, including the unlawful appropriation of trust funds X
commits this form of theft if he steals money in the form of credit. In most cases
the credit has been entrusted to X with the understanding that it is to be used in
a certain way, whereupon X then violates the terms under which he is to use it
by employing it for some other purpose – usually for his own advantage. What
makes this form of theft so different from other forms of the crime is that X
commits theft despite the fact that what he steals is neither a corporeal thing nor
does it belong to somebody else. It differs from the ordinary principles govern-
ing theft to such an extent that it cannot be accommodated under the definition
of the crime given above without radically amplifying the ordinary meaning of
the words.
6 Arrangement of discussion The further discussion of the crime will be
arranged as follows: Firstly, in paragraphs numbered 7 to 10, there will be a
discussion of the four general elements of the crime identified above. In this
discussion no distinction will be made between the different forms of theft,
since the four requirements mentioned apply to all the forms of theft.
Thereafter, in paragraphs numbered 11 to 15, the four different forms of
theft, namely the removal of a thing, embezzlement, the unlawful arrogation of
possession and theft of credit will be discussed. In this discussion the emphasis
will be on those particular rules which apply to each of these particular forms
of the crime only. Finally, in the paragraphs numbered 16 and 17, the question
whether a difference is drawn between perpetrators, accomplices and accessories
after the fact in theft is discussed.
7 The requirement of an act

(a) “Appropriation” preferable to contrectatio In Roman and Roman-

Dutch law the act required to commit theft was described as a contrectatio.
Contrectatio originally meant the handling or touching of a thing. Our
courts still use the term contrectatio as a description of the act, but it is
clear that our law has long since reached the stage where a thing can be
stolen without necessarily being touched or physically handled: one need
think only of the situation where X chases the chickens of Y, his neigh-
bour, off Y’s property and onto his own without even touching them. In the
theft of credit too, there is as a rule no physical contact with any specific
notes or coins.
continued
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 479

(b) Act of appropriation6 In theft in the form of the removal of property

the act of appropriation consists in any act in respect of property whereby
X:
(i) deprives the lawful owner or possessor of his property; and
(ii) himself exercises the rights of an owner in respect of the property.7
X thus behaves as if he is the owner or person entitled to the property
whereas he is not, and in so doing he exercises control over the property
himself in the place of the person having a right to it.8

An act of appropriation consists of two components: a negative component

(namely the exclusion of Y from his property) and a positive component (namely
X’s actual exercise of the rights of an owner in respect of the property in the
place of Y). If only the second component has been complied with, but not the
first, there is no completed act of appropriation. This explains why X does not
commit theft if he merely points out to Z a certain property as one belonging to
him (X) whereas in fact it belongs to Y, then “sells” the thing to Z, but his (X’s)
fraudulent conduct is discovered before Z is able to remove the thing. In a set of
facts such as this the real owner, Y, has not yet been excluded from the control
over his property, and therefore there has been no compliance with the negative
component of the appropriation requirement, although the positive component
has been complied with.9
For the same reason X will not be convicted of completed theft if he is appre-
hended before he has succeeded in depriving Y of his thing, although he was
already in the process of committing acts indicating that he has arrogated to
himself the rights of an owner over the thing. An example of such a case is
where X, wishing to steal Y’s motor car, is apprehended while he is still tamper-
ing with the electrical wiring below the steering column but has not yet succeeded
in starting the car. He can, however, be convicted of attempted theft.10
The view held in some earlier cases that for theft to be committed it is suffi-
cient that there be an assumption of control, even if Y was not deprived of his
property,11 is incorrect.12 If this is all that is required to constitute an act of
theft, it would be impossible to distinguish between attempted and completed
theft. In the example quoted in the previous paragraph of X being apprehended
in Y’s motor car, X has already “assumed” control of the car; it is nevertheless
clear that he is not guilty of completed theft, but only of attempted theft.
The principle that the mere assumption of control over an article is not suf-
ficient to constitute an act of theft, and that it is further required (for completed
________________________

6 For a detailed exposition of the concept of appropriation, see Snyman 1975 THRHR 29
37–38.
7 Tau 1996 2 SACR 97 (T) 102a–b; Nkosi 2012 1 SACR 87 (GNP) par 20.
8 Snyman 1975 THRHR 29 37–38; Loubser 64.
9 Nkosi 2012 1 SACR 87 (GNP) par 20. It is submitted that it is this principle that underlies
the acquittals in Makonie 1942 OPD 164 and Strydom 1952 2 SA 397 (T).
10 Jacobs 1955 2 PH H187 (W); Josiya 1970 4 SA 549 (R).
11 M 1982 1 SA 309 (O) 312C–D; Hunt-Milton 593–596.
12 Tau 1996 2 SACR 97 (T); Nkosi 2012 1 SACR 87 (GNP) par 20.
480 CRIMINAL LAW

theft) that X by his conduct should have excluded Y from his property, is clearly
underlined by two judgments, namely Tau13 and Mzandi14
In Tau15 X exercised control (or at least assumed control) over a piece of raw
gold, but the security in the smelting house of the gold mine in which the act
took place was so tight that he would never have succeeded in removing the
raw gold from the smelting house. The court held that X had not committed
theft of the raw gold because he had never succeeded in excluding Y (the gold
mine which owned the raw gold) from exercising control over it.16
In Mzandi17 X broke into a house, placed articles such as a hi-fi set in a bag
and placed it underneath a bed. However, he never removed the article from the
house. Apparently his intention was to return later, when it was safer for him,
and then to collect the bag, but this never happened. The court correctly held that
X had not committed theft of the articles but at most attempted theft, because
the real owner had never lost control of his articles. Although X had exercised
the rights of an owner, the real owner had never been deprived of the articles.
The fact that appropriation consists of the two components mentioned above
does not mean that all acts of appropriation necessarily consist of two separate
events. It means only that one cannot assume that there has been a completed
act of appropriation unless X’s exercising of the rights of an owner in respect of
the property has also led to Y being actually deprived of his property. In the
vast majority of instances of theft Y’s exclusion from his property and X’s
exercising of the rights of an owner take place by means of a single act. How-
ever, in exceptional cases the negative component of the appropriation may be
separated from the positive component, as where X throws objects off a moving
train and picks them up later. If he is apprehended after throwing them off the

________________________

13 1996 2 SACR 97 (T).

14 2011 1 SACR 253 (WC).
15 1996 2 SACR 97 (T), discussed by Snyman 1998 TSAR 118. Tau’s case was followed in
Nkosi supra par 20 and Mekula 2012 2 SACR 521 (ECG) par 6–7.
16 See 102b–c, g–h, i–j. It is submitted that the judgment in Ncube 1998 1 SACR 174 (T) is
completely erroneous. In this case it was held that X had committed completed theft
merely on the strength of evidence that he had moved or lifted a carton box from the back
of an open delivery vehicle with the intention of stealing it, before the police arrested him.
The judgment is wrong inasmuch as the court regarded the mere assumption of control as
sufficient for a conviction of completed theft (175). Y, the driver of the delivery van, was
never deprived of the box. She must have been very surprised to learn afterwards that
somebody had been convicted of theft of a carton which was on the back of her delivery
van but which she was never deprived of, and which she had never even suspected to
have disappeared (cf the evidence on 176b)! More acceptable is the judgment in Newman
1998 1 SACR 94 (C), in which the court refused to convict X even of attempted theft in
the following circumstances: he broke into a house, and in an apparent attempt to steal,
had only opened the cupboards in the house and thrown the contents on the floor, when
he was apprehended by the police. The court correctly did not work with the concept of
contrectatio but instead required an act of appropriation (98b). It is clear that at the time
he was apprehended X had already assumed control of the articles, although he had failed
to deprive Y of the articles. The judgment in Nkosi 2012 1 SACR 87 (GNP) par 20 follows
the law as set out in the text.
17 2011 1 SACR 253 (WC).
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 481

train but before collecting them from the ground, he can at most be convicted of
attempted theft.18
The exposition of the act of appropriation thus far has been limited to cases
of theft in the form of the removal of property. In cases of theft in the form of
embezzlement it is only the positive aspect of appropriation that matters; the
negative component of the concept, which consists of Y’s exclusion from the
property, in reality plays no role, because in these cases Y does not have con-
trol or possession of the property – X already has control of the property.
Theft is not a crime that can only be committed by X with his own hands or
body. The act of appropriation can also be committed indirectly, that is, through
the instrumentality of another.19 X may even use the owner (Y) himself as an
innocent instrument, as where he makes Y, who is unaware of the relevant facts,
believe that an article belonging to Y in fact belongs to him (X), and induces Y
to hand it to him (X).
8 Property (things) capable of being stolen Theft can be committed only in
respect of certain types of property (or things). However, as will be pointed out,
there are certain exceptions to this rule. To qualify as property capable of being
stolen, the property must comply with the following requirements:
(a) The property must be movable. An example of immovable property is a
farm. Therefore, one cannot steal part of a farm by moving its beacons or
fences.20 If part of an immovable property is separated from the whole, it quali-
fies as something that can be stolen; examples in this respect are mealie cobs
separated from mealie plants21 and trees cut down to be used as firewood.22
(b) The property must be corporeal, that is, an independent part of corporeal
nature. Thus, one can steal neither an idea,23 nor “board and lodging”.24 If X
unlawfully (ie, without consent) “takes over” “an idea” discovered or invented
by Y dealing with, for example, how to build a certain type of machine, or un-
lawfully copies an architectural plan drawn up by Y, representing it as his own,
or if X, a musician, sings a tune composed by Y on a CD representing it as his
own composition, X cannot be charged with theft of such an idea, patent, “plan”
or “tune”. Y may take legal action against X for X’s violation of copyright,
patent right or some principle of intellectual property law. It is also conceivable
that X may render him guilty of fraud if he fraudulently represents a plan or tune

________________________

18 Cf the facts in De Swart 1948 1 PH H49 (C): X wanted to steal clothes from a house by,
firstly, throwing them out of the window and then, later, collecting them outside the
house. However, it was proved only that he had thrown them out of the house. He was
correctly not found guilty of theft.
19 Karolia 1956 3 SA 569 (T); Bergh 1975 3 SA 359 (O) 369H; Graham 1975 3 SA 569 (A).
20 On the rule that movable property cannot be stolen, see D 47 1 1 8; D 47 2 25 pr; Inst 2 6
7; Voet 47 2 3; Matthaeus 47 1 1 8.
21 Skenke 1916 EDL 225.
22 Williams 7 HCG 247. See further Hendricks 17 CTR 470 (lead piping detached from a
house); Shandu 1927 TPD 786.
23 Cheeseborough 1948 3 SA 756 (T).
24 Renaud 1922 CPD 322.
482 CRIMINAL LAW

to be his own whereas it is in fact not his own. It follows that claims or rights
cannot be stolen, and that mere breach of contract cannot amount to theft.25
The rule that only corporeal property is capable of being stolen should, how-
ever, be viewed circumspectly. Since Roman times the law has recognised the
possibility that an owner may steal his own thing from a possessor (furtum
possessionis, or “the unlawful arrogation of the possession of a thing”).26 Yet is
it really the thing itself that is stolen here? While it is true that the act is here
directed at a corporeal thing, what is infringed is the possessor’s right of deten-
tion, which is a right and not a thing. Furthermore, as will be seen in the discus-
sion below of the theft of money, the courts have long recognised that when
money is stolen by the manipulation of cheques, banking accounts, funds, false
entries, and so forth, it is not corporeal things such as specific notes or coins
which are stolen but something incorporeal, namely “credit”.27
In Harper28 it was held that shares (as opposed to share certificates) could be
stolen. The court stated that the idea that only corporeal property could be stolen
was due to the rule of Roman law that there had to be some physical handling
(contrectatio) of the property, and added that once the courts have moved away
from the requirement of a physical handling, the reason for saying that there
can be no theft of an incorporeal object in any circumstances would seem to
have fallen away. However, the basic rule is discarded only in cases of theft of
money or credit – which will be discussed below.29
Can electricity be stolen? There are two opposing judgments on this matter.
In Mintoor (1996)30 it was held that electricity cannot be stolen. The court
based its decision on inter alia the consideration that electricity is not a particu-
lar material, but a situation of tension or movement of molecules. It is a form of
energy. A cyclist who holds onto a moving truck can be said to “appropriate”
for himself the truck’s “energy”, but he does not commit theft of the “power” or
“energy”.31
In Ndebele (2012),32 on the other hand, the court ruled that it can be stolen,
because the energy in electricity amounted to an appropriation of a character-
istic of a thing, namely an electron. The court based its finding on reasoning
analogous to the reasoning in previous decisions which held that money in the
form of credit may be stolen.
It is submitted that the decision in Mintoor is to be preferred and that elec-
tricity is accordingly not to be regarded as a thing capable of being stolen in
________________________

25 Gebhard 1947 2 SA 1210 (G); Matlare 1965 3 SA 326 (C). On the problems relating to
theft of information through a computer, see Van der Merwe 195–199, Skeen 1984 SACC
262; Ebersöhn 2004 THRHR 22.
26 Infra par 13.
27 See eg Kotze 1965 1 SA 118 (A) 123; Graham 1975 3 SA 569 (A) 576. See further infra
par 15.
28 1981 2 SA 638 (D) 666. See also Kimmich 1996 2 SACR 200 (C) 210f–g.
29 Infra par 15.
30 1996 1 SACR 514 (C).
31 S 27(2) of the Electricity Act 41 of 1987 provided that any person who abstracts, branches
off or diverts any electric current or uses such current commits an offence and is liable on
conviction to the penalties which may be imposed for theft.
32 2012 1 SACR 245 (GSJ).
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 483

terms of the common-law crime of theft.33 Such a view accords better with the
cardinal principle of legality in criminal law,34 according to which a court may
not create a crime or substantially alter the meaning or scope of the elements of
an existing crime, especially by means of analogy. It may be conceded that,
given the large-scale unlawful appropriation of electricity in this country, there
is a great need for the criminalisation of this type of conduct. When Mintoor
was decided in 1996, the Electricity Act 41 of 1987 which then applied, con-
tained a provision in section 27(2) stating that any person who abstracts or
diverts any electric current commits an offence and is liable on conviction to
the penalties which may be imposed for theft. This Act of 1987 was replaced by
a new Electricity Regulations Act, 4 of 2006, which for some inexplicable
reason does not contain a similar provision.
It is submitted that if the legislature fails to criminalise this type of conduct, it
is not the task of the courts to fill this vacuum merely because they think it
would be a good thing to criminalise such conduct. It is the task of the legis-
lature to do this. It is not the task of a court to fill what it considers gaps in
legislation by itself creating a crime or extending the scope of an existing crime
by analogy. Iudicis est ius dicere, sed non dare – the task of a court is not to
create law, but to apply it. This is one of the cornerstones of our democratic
Constitution, namely that the lines of demarcation between the tasks of the
legislature, the executive and the judicial branches of government should not
become blurred. The judgment in Ndebele will lead to the concept of “a thing
capable of being stolen” becoming too abstract and wide. It may lead to the
mere unauthorised use of an idea, a plan (such as an architectural design), infor-
mation, the plot of a story or the tune which a successful pop artist sings, also
amounting to theft. Such a situation would be untenable. Where is one then to
draw the line?
(c) The property must be in commercio, that is, available in commerce or
capable of forming part thereof. Property is available in commerce if it is capable
of being sold, exchanged or pledged, or generally of being privately owned. The
following types of property are not capable of forming part of commercial deal-
ings and are therefore not susceptible to theft:
(i) Res communes, that is, property belonging to everybody, such as the air,
the water in the ocean or in a public stream.35
(ii) Res derelictae, that is, property abandoned by its owners with the intention
of ridding themselves of it.36 Property which a person has merely lost,
such as money which has fallen out of a person’s pocket, is not a res
derelicta, because such a person did not have the intention to get rid of it.
________________________

33 In her discussion of the Ndebele judgment Jordaan 2012 SACJ 316 expresses a similar
concern about the unacceptable consequences of the decision. However, for a contrary view,
see D’Oliveira 2012 THRHR 312, who welcomes the decision in Ndebele, describing it as
“long overdue and realistic”.
34 Supra I F 11.
35 Laubscher 1948 2 PH H46 (C); Mostert 2010 1 SACR 223 (SCA) par 22–23, discussed
by Van der Schyff and Van der Walt 2012 SACJ 297.
36 D 47 2 43 5; Madito 1970 2 SA 534 (C); Rantsane 1973 4 SA 380 (O); Cele 1993 2
SACR 52 (N) 54i.
484 CRIMINAL LAW

It can normally be accepted that articles thrown out by householders in

garbage containers or thrown onto rubbish dumps are res derelictae.
(iii) Res nullius, that is, property belonging to nobody although it can be the
subject of private ownership, such as wild animals or birds.37 However, if
such animals or birds have been reduced to private possession by capture,
for example, birds in a cage or animals in a zoo, they can be stolen.38
(d) In principle the property must belong to somebody else. One cannot,
therefore, steal one’s own property. The exception to this rule is the case of the
unlawful arrogation of the possession of a thing (furtum possessionis).39 If prop-
erty belongs to two or more joint owners, the one can steal from the other(s).40
9 Unlawfulness The unlawfulness of the appropriation may be excluded by
grounds of justification such as consent, presumed consent (negotiorum gestio)41
and necessity.
In practice the only ground of justification which is regularly encountered is
consent. The appropriation is not unlawful where Y consents to it, even if X is
unaware of such consent or thinks that no consent has been given.42 Where Y,
as part of a prearranged plan to trap X, fails to prevent X from gaining posses-
sion of the property, although he knows of X’s plans, there has been no valid
consent to the taking. Y has merely allowed it in order to trap X.43 Where Y
hands over his property because he is threatened with personal violence if he
refuses, there is similarly no consent and the taking amounts to theft.44 The
position is the same where consent is obtained by fraud or false pretences.45
10 Intention requirement
(a) General It is firmly established that the form of culpability required for
theft is intention. The intention to steal is sometimes referred to as animus
furandi. The crime can never be committed negligently. According to the gen-
eral principles of intention, the intention (and more particularly X’s knowledge)
must relate to the act, the definitional elements of the crime as well as the
unlawfulness. The Supreme Court of Appeal has endorsed this view when, in a
unanimous judgment by five judges in Boesak46, it held that “(t)he intent to
steal . . . is present where a person (1) intentionally effects an appropriation

________________________

37 D 47 2 26 pr; Mafohla 1958 2 SA 373 (R) (wild kudu); Mnomiya 1970 1 SA 66 (N) 68
(no theft of honey or wild bees).
38 Inst 2 1 13–14; Maritz (1908) 25 SC 787 (fish in a river); Sefula 1924 TPD 609 610
(animals in zoo); S 1994 1 SACR 464 (W) (snake removed from zoo).
39 Infra par 13.
40 D 47 2 45; Voet 17 2 28; 47 2 4; Pretorius 1908 TS 272; MacLeay 1912 NPD 162.
41 Eg while my neighbour is away on leave his house is threatened by flood waters. I take
his furniture and store it in my house until he returns.
42 D 47 2 48 3; D 47 2 46 8; Inst 4 1 8; Matthaeus 47 1 1; Huber HR 6 5 20.
43 Inst 4 1 8; Ex parte Minister of Justice: in re R v Maserow 1942 AD 164; Sawitz 1962 3
SA 687 (T).
44 Ex parte Minister of Justice: in re R v Gesa; R v De Jongh 1959 1 SA 234 (A).
45 Ex parte Minister of Justice: in re R v Gesa; R v De Jongh supra 240; Hyland 1924 TPD
336; Stanbridge 1959 3 SA 274 (C) 280; Heyns 1978 3 SA 151 (NC).
46 2000 1 SACR 633 (SCA) par 97.
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 485

(2) intending to deprive the owner permanently of his property or control over
his property (3) knowing that the property is capable of being stolen, and (4)
knowing that he is acting unlawfully in taking it”. The act of appropriation, the
property requirement and the requirement of unlawfulness have all been dis-
cussed above. In the discussion which follows the intention in respect of each
of these three basic requirements will be discussed separately.
(b) Intention in respect of the act, ie intention to appropriate All authorities
agree that intention in respect of the act does not consist merely in X’s knowledge
or awareness that he is, generally speaking, “performing some or other kind of
act” in respect of the property. Even an awareness by X that he is handling the
property or exercising control over it, is not sufficient, even if such awareness
is accompanied by knowledge that the property belongs to somebody else and
that such other person has not consented to the handling of the property. All
authorities agree that, in order fully to describe the intention required for theft,
some further intention, apart from that mentioned above, is required. If no such
additional intention were required, conduct such as the following, which by
general agreement ought not to be punishable as theft, would indeed qualify as
theft: (a) X maliciously conceals Y’s property so that he cannot find it;47 (b) X
temporarily uses Y’s property without his permission but returns it;48 (c) X takes
Y’s property without his permission and keeps it as pledge in order to bring
pressure to bear upon Y to repay a debt he owes X;49 or (d) X simply damages
Y’s property or sets fire to it.
To qualify as theft, X’s state of mind must encompass something more than
merely the knowledge, described above, relating to the property and the un-
lawfulness, and something more than mere knowledge relating to the act in the
sense “that X knows that he is handling an article or is in the process of gaining
control of it” or something similar. This additional intention refers to the object-
ive which X aims to achieve by means of his act; unlike the intention relating to
the property and the unlawfulness, it relates to X’s will (conative element of in-
tention) and not his knowledge of existing facts (cognitive element of intention).
It is now firmly established in our law that the additional intention referred to
above consists of an intention to appropriate the property. This intention best
describes the mental state which is characteristic of a thief. Such a description
of the intention requirement is completely reconcilable with our case law; the
courts, including the Supreme Court of Appeal,50 regularly use the expressions
“appropriate” and “intention to appropriate” in their descriptions of the crime.
What was said above51 in respect of the act of appropriation applies mutatis
mutandis to the intention to appropriate: just as the act of appropriation presup-
poses both (a) an exclusion of Y from his property (negative component), and
(b) X’s exercising of the rights of an owner (positive component), so the
intention to appropriate encompasses both (a) the intention of depriving Y of is

________________________

47 Lessing 1907 EDC 220; Engelbrecht 1966 1 SA 210 (C).

48 This is not theft – infra par 14.
49 This is not theft – infra par 10(c).
50 Visagie 1991 1 SA 177 (A) 181; Boesak 2000 1 SACR 633 (SCA) par 97.
51 Supra par 7(b).
486 CRIMINAL LAW

control over the property (negative component) and (b) the intention of exer-
cising the rights of an owner over the property himself, instead of Y (positive
component).
(c) Intention permanently to deprive the owner The intention of depriving
the owner of his property (negative component) is further qualified in an import-
ant respect, namely that X must intend permanently to deprive the owner of his
property. Only then does X have the intention to appropriate the property. Where
he intends to deprive Y of his property only temporarily he at all times respects
and recognises Y’s ownership or rights in respect of the property. This is con-
trary to the very essence of appropriation. The usual meaning of “appropriate”
is “to make something your own”; this, however, cannot be said to happen
where X intends presently to restore the property to Y substantially intact.
This aspect of the concept of intention to appropriate has an important practical
result, namely that to use property temporarily with the intention of restoring it
to the owner (furtum usus) does not amount to an appropriation and therefore
does not constitute theft. This result is in complete harmony with the law applied
in the courts, which requires an intention permanently to deprive the owner of
his property.52 The meaning of “intention to appropriate” is therefore wide
enough to include an intention permanently to deprive Y of his property.
Where X takes Y’s property without his consent, not in order to deal with it
as if he were the full owner, but merely to keep it as a pledge or security in
order to bring pressure to bear upon Y to repay a debt which Y owes X, X does
not commit theft: he remains willing to restore the property to Y as soon as Y
has paid his debt, and therefore has no intention of unlawfully appropriating
it.53
(d) Overlapping of theft and injury to property There is one type of situation
where an application of the requirement of intention to appropriate may result
in a conclusion in respect of which there may be differences of opinion. This is
where X destroys Y’s property before there can be any question of its utilisa-
tion by X. One of the rights of an owner is to destroy his own property, and, if
X destroys Y’s property, it may be argued that in so doing X has assumed the
rights of an owner in respect of the property and has therefore appropriated it.
In this way acts which in reality amount to injury to property are punished as
theft. It is submitted that the borderline between theft and injury to property is
not watertight in all respects, and that in cases such as these where property is
destroyed, there is a limited field in which these two crimes overlap. It is submit-
ted that in order to decide whether, in such a case, X should be charged with
theft or injury to property, one has to decide whether it is the appropriation or
the destruction aspect of X’s conduct that is most evident.54
If one requires an intention permanently to deprive the owner of his property
without also requiring an intention to appropriate, it is not possible satisfac-
torily to demarcate theft from acts which do not amount to theft. It will then be

________________________

52 Supra par 10(f). The leading case is Sibiya 1955 4 SA 247 (A).
53 Van Coller 1970 1 SA 417 (A).
54 For examples of cases in which X has been charged with theft but the evidence revealed
that he had only destroyed the property, see the cases referred to infra fn 55.
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 487

impossible satisfactorily to distinguish between theft and cases of damage to

property. There are instances where the aspect of damage or destruction in X’s
act is far more evident than the aspect of appropriation or theft, and where X
should not be convicted of theft but rather of injury to property.
Examples of such instances would be where X, out of spite against his neigh-
bour Y against whom he harbours a grudge, on a visit to Y snatches a glass
flowerpot belonging to Y and throws it out of the window onto the stoep where
it breaks into pieces; or where X drives Y’s cattle over a precipice, causing them
to be killed, without performing any further act in respect of the cattle. In these
instances X also entertains the intention permanently to deprive the owner of
his property, but it would seem clear that he does not commit theft. There are,
in fact, certain cases in which the courts (correctly, it is submitted) refused to
convict X of theft despite the fact that he did in fact have the intention perman-
ently to deprive the owner of his property.55 The conclusion reached by the
courts in these cases is completely reconcilable with the requirement that X
must have the intention to appropriate the property.
(e) No intention to derive a benefit required Roman and Roman-Dutch law
attempted to distinguish theft from acts not amounting to theft by requiring that
X should have had an intention of deriving a benefit from his dealing with the
property. This requirement is expressed by the words lucri faciendi gratia.56
Under the influence of English law the common-law requirement of lucrum was
abandoned at an early stage in the development of the crime in South Africa.57
Because the old lucrum requirement no longer forms part of our law, it fol-
lows that a generous motive on the part of X, such as a wish to distribute the
stolen goods amongst the poor, does not exclude the intention to steal.58 The
lucrum or advantage referred to in this old requirement is simply the converse
________________________

55 Cf the following cases in which it was held that merely killing another’s livestock or
merely destroying another’s property is not theft, but injury to property: Maruba 1942
OPD 51; Van der Walt 1946 GWL 42; Kama 1949 1 PH H66 (O); Kula 1955 1 PH H66
(O); Dlomo 1957 2 PH H184 (E); Blum 1960 2 SA 497 (E) (In this case X seized his
neighbour, Y’s, dogs who were trespassing on his property and causing damage. Shortly
thereafter the dogs jumped from Y’s truck and X omitted to search for them. The dogs
disappeared. The court held that X had not committed theft by allowing the dogs to dis-
appear. In this case X did have the intention permanently to deprive Y of his dogs. The
only explanation for X’s acquittal must be that the court tacitly assumed that, apart from
an intention permanently to deprive the owner, X also had to have an intention to appro-
priate.) Kinqa 1962 2 SA 401 (E); Vilakazi 1967 2 PH H280 (N). In cases such as Lessing
1907 EDC 220, Hendricks 1938 CPD 456 and Engelbrecht 1966 1 SA 210 (C) X was
found not guilty of theft despite the fact that he clearly had an intention permanently to
deprive the owner of his property. In these cases X simply threw Y’s article away be-
cause he was angry with Y, but without having had any intention to appropriate the art-
icle. These cases are completely reconcilable with the requirement that X should have the
intention to appropriate the property.
56 D 47 2 1 3. See also D 47 2 55 1; Damhouder 110 3; Moorman 3 2 2; Voet 47 2 1; Huber
HR 6 5 pr; Van der Linden 2 6 2.
57 Laforte 1922 CPD 487 499; Kinsella 1961 3 SA 519 (C) 526; Engelbrecht 1966 1 SA 210
(C) 211–212; Dreyer 1967 4 SA 614 (E) 619–620. The clearest rejection of the require-
ment is in Kinsella supra.
58 Kinsella supra 526.
488 CRIMINAL LAW

of the disadvantage or prejudice suffered by Y: because an intention to derive a

benefit is no longer required in our law, it follows e contrario that no intention
to prejudice Y is required.
(f) Intention in respect of the property This aspect of the requirement of
intention means that X must know that what he is taking or that at which his
conduct is directed is a movable corporeal property which is available in com-
merce and which belongs to somebody else or (in cases of theft in the form of
the arrogation of possession) which belongs to himself but in respect of which
somebody else has a right of possession which prevails against his (X’s) right
of possession. If X believes that his action is directed at a res nullius or a res
derelicta, whereas the particular piece of property is in fact not a res nullius or
a res derelicta, he lacks the intention to steal and cannot be convicted of theft.59
If X believes that the property he is taking belongs not to another, but to him-
self, he likewise lacks the intention to steal.60
( f ) Intention in respect of unlawfulness The requirement that the intention
must also relate to the unlawfulness requirement means that X must know that
Y has not, or would not have, consented to the removal of the property.61 The
intention to steal is also lacking where, although he knows that Y has not or
would not have consented, X thinks that he has a right to take the property.
These cases are usually referred to as “claim of right” cases. X is here mistaken
about the rules of private law.62
11 Removal of a thing
(a) General Thus far the four general requirements which apply to all forms
of theft have been considered. Next, the particular forms of theft are considered
in more detail. The first, and most obvious, form of theft is the removal of a
thing. Here, X removes property belonging to Y which is in Y’s or somebody
else’s possession from Y’s or the other person’s possession and appropriates it.
It is unnecessary to discuss the property requirement, the unlawfulness require-
ment and the intention requirement as they apply to this particular form of theft,
since the principles relating to these three requirements set out above apply with-
out any qualification to this form of the crime. Only the requirement of the act
requires further elucidation. As in all forms of theft the act here also consists of
an appropriation of the property, but unlike embezzlement, the appropriation
________________________

59 Griffin 1962 4 SA 495 (E) 497; Rantsane 1973 4 SA 380 (O) (X removed a mattress
cover from a dustbin under the impression that the owner had thrown it away); Randen
1981 2 SA 324 (ZA) 325H; Cele 1993 2 SACR 52 (N) 55a–b. X’s knowledge may also
exist in the form of dolus eventualis. The opposite opinion expressed in Aitken 1988 4 SA
394 (C) 401 is, with respect, incorrect and was justifiably criticised – see Oosthuizen 1990
TSAR 681.
60 Ndhlela 1956 2 SA 4 (N); Riekert 1977 3 SA 181 (T) 183.
61 Sibiya 1955 4 SA 247 (A) 257; Herholdt 1957 3 SA 236 (A) 257; Heller 1971 2 SA 29
(A) 46; Harper 1981 2 SA 638 (D) 669H–670A, 671F. For more cases in which X was
found not guilty because he was unaware that he was acting unlawfully, see Thebe 1981 1
SA 504 (B) (X thought that he had the right to take and eat the carcase); Speedy 1985 2
SA 782 (A) (X thought that he was entitled to catch his neighbour’s goats as a “fine” for
trespassing).
62 De Ruiter 1957 3 SA 361 (A); Latham 1980 1 SA 723 (ZRA).
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 489

must here be accompanied by a removal of the property from somebody else’s

possession. It is necessary, briefly, to discuss the removal requirement.
(b) Border between attempted and completed act of appropriation Whether
or not X removed a thing from another person’s control is a factual question.
What is of importance is not so much the touching, handling or other physical
act in respect of the property; neither is the distance it has been removed from
where it had originally been necessarily the most important consideration. The
decisive criterion is whether X succeeded in gaining control over the property.
X gains control over a thing which had not previously been in his own posses-
sion or control only if he excluded Y from his control over the thing. Since the
thief and the owner have conflicting claims to the property, they cannot both
simultaneously exercise control over it; the precise moment at which the owner
loses control and the thief gains it is a question of fact.
If X takes Y’s thing and carries it away but is apprehended shortly thereafter,
before he can succeed in conveying the thing to the precise locality he had in
mind, the question arises whether X should be convicted of completed or
attempted theft. The test to distinguish between completed and attempted theft
is the same as the test to distinguish between a completed and an uncompleted
act of appropriation: the question is always whether, at the time X was appre-
hended with the property, Y had already lost control of the property and X had
gained control of it in Y’s place. The answer to this question depends upon the
particular circumstances of every case, such as the nature of the property, the
way in which a person normally exercises control over such type of property,
and the distance between the places where the property was taken and where X
was caught with it. The mere fact that at the time he was caught, X had already
assumed control of the property, does not necessarily mean that he had already
committed a completed act of appropriation; the test to determine whether there
was a completed act of appropriation is not an assumption of control, but the
exercising of control in Y’s place – something which is possible only if Y had
lost control over the property in X’s favour.63
(c) Theft from a self-service shop It is sometimes difficult to determine
exactly when Y’s control ceases and X’s commences. This problem is illustrated
by the contradictory decisions arising from cases where, in self-service shops,
people remove articles from shelves and conceal them in their clothing with the
intention of stealing them but are apprehended by shop assistants before they
pass through check-out points. In some cases64 it has been held that this consti-
tutes completed theft, and in others65 that only attempted theft has been commit-
ted. The test to be applied in cases of this nature is the same as the general test
to determine whether there was an act of appropriation: one should enquire
whether, at the time he was apprehended, X’s conduct had already reached a
________________________

63 Kumalo 1952 2 SA 389 (T); Koopman 1958 3 SA 68 (G). Tau 1996 2 SACR 97 (T) 102.
For cases in which the handling of the property had reached the stage where X had al-
ready gained control of the property in place of Y (and has therefore been convicted of
completed theft), see Mohale 1955 3 SA 563 (O) 564, 565; Tarusika 1959 R and N 51.
64 Bertinotti 1961 1 PH H79 (F); Xinwa 1970 2 PH H171 (NC); Uirab 1970 2 PH H172
(SWA); M 1982 1 SA 309 (O); Dlamini 1984 3 SA 196 (N).
65 Khumalo 1975 4 SA 345 (N); Mquabuzana 1976 1 SA 212 (E).
490 CRIMINAL LAW

stage where he exercised effective control over the article. This stage would
have been reached only if the owner had lost control over the article.
The latest trend in our case law is to convict X of completed theft if, in a self-
service shop, he concealed articles in his clothing and was apprehended before
he could pass through the check-out point (assuming that he had the intention to
steal).66 The reason for convicting X of completed theft seems to be the follow-
ing: although the owners of self-service shops usually take steps to ensure that
clients do not surreptitiously remove articles without paying for them, it is prac-
tically impossible to keep an eye on all clients at all times. If somebody, intend-
ing to steal, has concealed an article in or under his clothing in a self-service
shop and is apprehended before he can pass through the check-out point, his
apprehension is to a certain extent the result of chance: the security officer who
apprehended him might, for example, have been performing his duties in
another part of the shop, in which case the client would have succeeded in
escaping with the article without paying. For this reason it cannot be said that,
in practical terms, the shop owner exercised full and effective control over
everything in the shop.67
Furthermore, there is merit in the argument that the moment X concealed the
article in his clothing, it ceased to be visible to the shop owner and that exactly
for this reason the shop owner, from that moment, ceased to exercise control
over the article. Viewed in this light, the decisions in which X was convicted of
completed theft cannot be faulted.68 It is submitted, however, that if X is appre-
hended in a shop or business where the security measures are so tight that it is
practically impossible for him to remove articles without being caught, he
commits only attempted theft, because in such circumstances the owner retains
control over everything on the premises at all times even though X may have
placed an article in his trouser pocket temporarily.69
12 Embezzlement X commits theft in the form of embezzlement (sometimes
also called “theft by conversion”) if he appropriates another’s (Y’s) property
which is already in his (X’s) possession. The property, unlawfulness and inten-
tion requirements in this form of theft need not be discussed, since the prin-
ciples relating to these requirements set out above apply without qualification
to this form of theft. Only the requirement of an act of appropriation needs fur-
ther explanation.
The possessor commits theft as soon as he commits an act of appropriation in
respect of the property with the necessary intention to appropriate. Since in cases
________________________

66 M supra; Dlamini supra; Van Oosten 1985 SACC 149 ff. On drawing an inference that X,
who was apprehended before reaching the check-out point, intended to steal the article
found concealed in his clothing, see Lujaba 1987 1 SA 226 (A).
67 Tau 1996 2 SACR 97 (T) 102g–h.
68 The judgment in Mekula 2012 2 SACR 521 (ECG), however is incompatible with the
above approach. In this case X hid a bottle of whisky in a self-service shop under his
clothing, but was apprehended by a security guard before passing the till. The court held
that, though he assumed control over the bottle, the owner of the shop was not excluded
from his property and therefore X could not be convicted of completed theft but only of
attempted theft. It is submitted that this decision is wrong, for the reasons set out above
relating the theft from a self-service shop.
69 Tau supra 102i–j.
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 491

of embezzlement X already has possession of the property, the act of appropri-

ation in these cases does not consist of both a positive and a negative component
as explained above, but only of a positive component, that is, the actual exercis-
ing of the rights of an owner over the property. In principle it is immaterial
whether X came into possession of the property because it was entrusted to him
or whether it came into his possession by chance, as where somebody else’s
animal walked onto his land.
The following are examples of acts of appropriation by a person already in
possession of the property: X consumes the property, as where he eats another’s
food or burns another’s firewood; or X sells the article,70 or donates it to some-
body, or exchanges it for something else, or uses it to pay his debts. Certain acts,
such as branding cattle or the pledging of an article to somebody, do not neces-
sarily amount to acts of appropriation, but are normally regarded as strong indi-
cations of the commission of such an act. If, at the time of pledging the article
X has no intention of paying his debt, thereby regaining possession of the article,
it is easy to deduce that he appropriated it.71 If, however, he intends paying the
debt and believes that he will be in a financial position to do so, it cannot be
concluded that he appropriated the article, because his act then amounts to the
mere temporary use of somebody else’s thing – conduct which does not consti-
tute theft.
If X has come into possession of another’s article in an innocent way and
thereafter finds out that it is in fact a stolen article, he commits theft if, after
such discovery, he sells the article or commits some other act of appropriation
in respect of it.72 A person who finds property which somebody else has lost
and then appropriates it, may also be guilty of theft. This is especially so if the
owner or lawful possessor can easily be traced, as where the owner’s name and
address appear on the lost property.73
If X buys an article from Y on instalment and in terms of the agreement Y
remains the owner thereof until X has paid the last instalment, it follows that X
is not the owner of the article he possesses. If, before the last instalment is paid,
X disposes of the property without Y’s consent, he may be convicted of theft.74
In all the above examples of acts of appropriation X performed some positive
act in respect of the property. Whether X appropriated property in cases where
he merely omitted to act is more problematic. For example, he merely fails to
restore the article to the owner on the date agreed on,75 or merely falsely denies
that he is in possession of it.76 The mere decision by X not to restore Y’s article
does not constitute an act of appropriation, since mere thoughts or decisions are
not punishable.77 On the other hand it is unrealistic to require that, in order to
________________________

70 Eg Attia 1937 TPD 102; Markins Motors (Pty) Ltd 1958 4 SA 686 (N).
71 Viljoen 1939 OPD 52; Van den Berg 1979 3 SA 1027 (NC).
72 Attia supra; Markins Motors (Pty) Ltd supra.
73 Luther 1962 3 SA 506 (A); Cele 1993 2 SACR 52 (N).
74 Van der Westhuizen 1965 1 SA 773 (T); Burstein 1978 4 SA 699 (T) 604; Van Heerden
1984 1 SA 667 (A).
75 As in Motete 1943 OPD 55 – X was found not guilty of theft.
76 As in Kumbe 1962 3 SA 197 (N) – X was found not guilty of theft.
77 Groenewald 1941 OPD 194 198–199; Motseremedi 1965 2 SA 220 (O) 221–222.
492 CRIMINAL LAW

commit theft, the possessor must necessarily first touch or physically handle the
article. Much depends upon the circumstances of each case, as well as X’s
intention. It is submitted that in certain circumstances it is perfectly possible to
construe an act of appropriation from the mere omission to act in a positive way
or from the mere failure to supply the correct information to somebody who
inquires about the property. If, for example, a shop owner X intentionally fails
to hand over to customer Y the change to which Y is entitled, he commits theft.
It is therefore submitted that it is perfectly possible to commit theft by means of
an omission.
13 Unlawful arrogation of possession (furtum possessionis) In these cases
the owner steals his own thing by removing it from the possession of a person
who has a right to possess it which legally prevails over the owner’s own right
of possession, such as a pledgee or somebody who has a lien over the property
to secure payment of a debt.78 In Roberts,79 for example, X took his car to a
garage for repairs. The garage had a lien over the car until such time as the
account for the repairs had been paid. X removed his car from the garage with-
out permission. He was convicted of theft. In Janoo80 X, the owner of a carton
of soft goods, which he had ordered by post, removed the carton from the station
without the permission of the railway authorities. He was entitled to receive the
goods only against signature of a receipt and a certificate of indemnification.
His intention in removing the goods was to claim for their loss from the railways
afterwards. He was found guilty of theft.
14 Unlawful temporary use of a thing not theft The situation dealt with
here is where X takes Y’s property without his permission with the intention of
using it temporarily and thereafter returning it to Y in substantially the same
condition. Such conduct was regarded as a form of furtum in Roman and
Roman-Dutch law; it was known as furtum usus. This expression means “theft
of the use of a thing”, since it is not the thing itself, but only its use which is
“stolen”.
In cases of furtum usus X does not intend to deprive Y of his property per-
manently. His intention is to utilise it temporarily. If one applies the English-
law criterion of “intention permanently to deprive the owner” (an intention
which, as was seen above,81 is included in the intention to appropriate) one is
forced to conclude that furtum usus falls outside the ambit of theft. This is pre-
cisely what was decided by our courts, which, since the previous century, have
followed English law with regard to this aspect of theft. The leading case in this
respect is Sibiya,82 in which the Appellate Division held that furtum usus is not
a form of theft. After this decision the legislature attempted to fill the gap left in
our law by this judgment, and in section 1 of the General Law Amendment Act
________________________

78 D 47 2 66 pr; Inst 4 1 10, 14; Voet 47 2 4; Matthaeus 47 1 1 8; Vinnius 4 1 10; Thomas

1922 EDL 194; Rudolph 1935 TPD 79; Roberts 1936 1 PH H2 (G); Janoo 1959 3 SA
107 (A). In Nkambula 1980 1 SA 189 (T) 191 it was emphasised that the right of posses-
sion must be a “geldige retensiereg of wettige houerskap van die saak”.
79 Supra.
80 Supra.
81 Supra par 10(g).
82 1955 4 SA 247 (A).
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 493

50 of 1956, created a new statutory crime. This crime will be discussed under a
separate heading below.83
If X uses another’s property temporarily and thereafter abandons it, without
caring whether the owner will ever get it back, he runs the risk of being con-
victed of theft. He commits theft if the inference can be drawn from the evidence
that he had foreseen the possibility that Y will never get his property back and
if he had reconciled himself to this possibility. X will then be held to have had
the intention permanently to deprive in the form of dolus eventualis.84
The rule that the unlawful temporary use of a thing is not theft is furthermore
subject to the following qualification: if X removes res fungibiles (ie, articles
which are consumed by use, but which can be replaced by a similar article, such
as a case of tomatoes, a bag of coal or a can of oil) belonging to Y without Y’s
consent and uses it, it is no defence for X to allege that he intended to replace
the article with a different but similar one.85 Thus, in Shaw86 X removed certain
sacks of coal and wood belonging to his employer. He later replaced them with
similar sacks of coal and wood. He was nonetheless convicted of theft.
15 Theft of credit, including the unauthorised appropriation of trust
funds87
(a) General The fourth form of theft, namely theft of credit, will now be
considered. This form of the crime constitutes a particular way in which money
can be stolen.
No one will deny that money can be stolen, and where X unlawfully takes
cash (notes, coins) from Y’s possession and appropriates it to himself there is
usually no difficulty in regarding such conduct as theft: X here commits theft
by virtue of the general principles applicable to the crime. Notes and coins are,

________________________

83 Infra XVIII B.
84 Vilakasi 1999 2 SACR 393 (N) 397–398. In Laforte 1922 CPD 487 X removed Y’s car
from his garage without his permission. He went for a drive in the car intending to return
it, but on the return journey collided with a lamp-post. Without notifying anyone, and re-
gardless of whether or not the car was returned to the owner, X abandoned the vehicle at
the scene of the accident. He was found guilty of theft. For similar cases, see Roberts
1932 CPD 87 92; Dorfling 1954 2 SA 125 (E) 126–127; Engelbrecht 1966 1 SA 210 (C)
212E; Van den Berg 1979 3 SA 1027 (NC). Contrast, however, W 1994 2 SACR 777 (N).
In this case X abandoned a vehicle which he had removed without intention. He was,
however, not convicted of theft. The court declared at 780f–g that “to leave a motor vehicle
with its number plates and its serial and engine numbers intact cannot, without more, con-
stitute the sort of abandonment contemplated in [the] passage from the [judgments in
Sibiya and Laforte]”. The suggestion is that the vehicle may probably be discovered by
somebody and that the true owner will then be traced. Whether this train of thought is
correct in the light of the spate of theft of motor cars in this country, is debatable. One of
the ways in which Y can be deprived of his property is if X destroys it.
85 Koekemoer 1959 1 PH H131 (O); Rusike 1961 2 PH H254 (R) (both these cases dealt
with the theft of petrol); Herholdt 1957 3 SA 236 (A) 257; Berliner 1966 4 SA 535 (W)
537; Heller 1971 2 SA 29 (A) 46 (all the latter cases dealt with the theft of money, which
is also a res fungibilis).
86 1960 1 PH H184 (G).
87 See generally Hunt-Milton 605–615; Burchell and Milton 554–560; Loubser passim;
1978 De Jure 86 ff.
494 CRIMINAL LAW

after all, corporeal property, and in this set of facts X is not the owner of the
notes or coins.
The most obvious meaning of “money” is corporeal notes or coins. However,
“money” may also have a less obvious and more abstract meaning, namely
“credit”. By “credit” is usually meant a right to claim money from a bank, be-
cause the bank is the owner of the money which is in the bank,88 whereas the
bank’s client only has a right to claim from the bank. In modern business usage
cash is seldom used. Money generally changes “hands” by means of cheques,
negotiable instruments, credit or debit entries in books, or registration in the
electronic “memory” of a computer. In these cases one can hardly describe the
money in issue as tangible, corporeal articles. It would be more correct to de-
scribe it as “economic assets”, “an abstract sum of money”, “a unit representing
buying power”, or (the word which will be used in the discussion which follows)
“credit”.
Theft of money in the form of credit, and especially credit entrusted to some-
body, was unknown in common law. It is a creation of our courts. One of the
most important ways in which this form of theft can be committed is the un-
authorised appropriation of trust funds. However, this is not the only way in
which credit may be stolen. X can commit theft of credit even if it were not en-
trusted to him. Most of the discussion which follows will, however, be devoted
to the appropriation of trust funds.
(b) Theft of credit which is not entrusted to somebody Before considering
the unauthorised appropriation of trust funds, cases of theft of credit not en-
trusted to a person are considered.
Assume that Z opens a cheque account at a bank and that he deposits R500
into the account. The bank then becomes the owner of the R500. Z only acquired
a right to claim the money from the bank. If the bank issues a cheque book to Z
and Z writes out a cheque of R100 in favour of Y and hands the cheque over to
Y, it means that Z instructs the bank to pay Y R100 upon presentation of the
cheque to the bank, and to diminish his (Z’s) claim of R500 against the bank by
R100. If X intercepts the cheque and without any authorisation deposits the
cheque into his own account, and the bank pays the R100 into X’s account, that
which is stolen by X is in fact Z’s right to claim R100 from the bank. X never-
theless, according to our law, commits theft of the R100 despite the fact that the
R100 is not a corporeal thing (tangible coins or notes), but merely a right to
claim from the bank – something which (like all rights) is incorporeal.
It is submitted that X also commits theft of credit if he unlawfully comes into
possession of Y’s credit card, discovers the secret number (the “PIN” number)
that Y has to use in order to draw cash from an automatic teller machine, and
then uses Y’s credit card and secret number to draw cash for himself from an
automatic teller machine.89 If X uses Y’s credit card, which he has unlawfully
obtained, in a shop to buy himself goods, X is usually charged with fraud,
because he has made a misrepresentation to the shop owner that the credit card
belongs to him.
________________________

88 Kotze 1965 1 SA 118 (A) 124H.

89 Botha 1990 SACJ 231 236.
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 495

(c) Theft of credit entrusted to somebody Generally speaking, theft of credit

entrusted to X takes place if credit has been entrusted to X to be applied by him
for a certain purpose, and contrary to the conditions in terms of which the funds
have been entrusted to him, he then applies the funds for another purpose –
mostly for his own benefit. What makes this form of theft unique is that here X
commits theft despite the fact that what he steals is neither corporeal property
nor property belonging to somebody else.
A feature of this form of theft is that it amounts to certain forms of breach of
contract qualifying as theft. The Appeal Court has expressly admitted that this
is a distinctive form of theft.90
This form of theft is so far removed from other forms of the crime that it
cannot be accommodated under the general definition of theft given above,
without radically extending the ordinary meaning of the words in the definition.
For this reason there is much to be said for the view that here one is not dealing
with theft as it originally developed in Roman-Dutch law, but rather with
another, separate crime. Nevertheless it is important to bear in mind that in
practice somebody who has committed an act falling within the ambit of this
form of the crime is charged with theft, and not with a crime under a different
name, and that if the prosecution is successful, he will be convicted of theft.
(d ) Unauthorised appropriation of cash entrusted to somebody Before dis-
cussing theft of credit entrusted to somebody, consideration is firstly given to
how the present form of theft can be committed in respect of cash, that is,
corporeal coins or notes.
Assume that Y gives X an amount of cash with instructions to use it to pay
Y’s debt to his (Y’s) creditor. X receives the money, but instead of paying Y’s
creditor with it, he spends it on liquor and a holiday for himself. Usually X
combines the cash he receives from Y with his own cash, with the result that, in
terms of the principles of private law, X becomes the owner of the cash he
received. Nevertheless according to our law X commits theft of the money if he
uses it to his own advantage.91 In these types of cases the rule that one cannot
steal one’s own property is no bar to a conviction. According to our courts, X
receives the money “in trust”, because he was not free to dispose of it as he
wished. X had to apply the money for Y’s benefit. Y, according to the courts,
has a “special interest or property” in the money.92 X’s conduct is not merely a
breach of contract, giving Y the right to institute a civil action for the repay-
ment of the money, but also constitutes a crime.
The same principles are applied if Y buys something in a shop and gives the
shopkeeper, X, an amount of cash which is more than the price of the item
purchased. X now has to give Y change, but then intentionally gives Y less than
________________________

90 Kotze 1965 1 SA 118 (A) 123F; Verwey 1968 4 SA 682 (A) 687; Reynecke 1972 4 SA
366 (T) 384D. On this form of theft see also Milne and Erleigh (7) 1951 1 SA 791 (A)
865C; Manuel 1953 4 SA 523 (A) 526; Gathercole 1964 1 SA 21 (A) 25; Heller 1971 2
SA 29 (A) 42; Graham 1975 3 SA 569 (A) 576; Harper 1981 2 SA 638 (D) 666–671;
Visagie 1991 1 SA 177 (A) 182–183; Kimmich 1996 2 SACR 200 (C) 210–211.
91 See the authorities referred to in previous footnote.
92 Manuel 1953 4 SA 523 (A) 526H; Scoulides 1956 2 SA 388 (A) 394G–H; Kotze 1965 1
SA 118 (A) 125–126; Graham 1975 3 SA 569 (A) 577E–F.
496 CRIMINAL LAW

he should, or fails to give Y any change at all. The money paid by Y to X is

regarded as money given to X “in trust”. X is under an obligation to return the
correct amount of change to Y. An intentional omission to do so amounts to the
theft of the money X has to pay back. In Scoulides93 Schreiner JA explained
this principle as follows: “in a case like the present the purchaser hands over
the banknotes, not in order to make the seller unconditionally the owner there-
of, but only in order to make him the owner if and when the goods and right
change are tendered”. There is, in any event, a second reason why in this type
of case X commits theft of the change: his conduct amounts to the dishonest
accounting of money entrusted to him. (It will be pointed out below94 that the
mere dishonest accounting of trust money can in itself constitute theft.)
(e) Unauthorised appropriation of credit entrusted to X The type of situa-
tion considered above dealt with theft of cash (coins or notes), that is, money in
the most obvious sense of the word. Next the question how theft can be com-
mitted through the unauthorised appropriation, not of cash, but of credit, will be
considered.
Assume that Y is a widow whose mental faculties are diminishing fast be-
cause of old age, and that X has undertaken to administer Y’s financial affairs.
As trustee of Y’s estate, it is X’s duty to receive all funds due to Y and then to
deposit them in a banking account of her behalf or to invest them for her at a
favourable interest rate. Z makes out a cheque in X’s favour, but the funds
which the cheques represent are not given to X in his personal capacity, but in
his capacity as Y’s trustee. The funds are due to Y and are to be utilised for Y’s
benefit. Z hands over the cheque to X. (The reason the cheque has not been
made out in Y’s favour and handed over to her is the fact that Y’s financial
affairs are now handled by X.) X receives the cheque, but in violation of his
duties as a trustee, he deposits the cheque into his own account in order to
extinguish his own private debt. In this set of facts X is, according to the law
relating to trusts, himself the owner of the funds (or expressed technically more
correctly: it is he who has the claim against the bank) which the cheque repre-
sents. Nevertheless, according to our courts, X commits theft by converting the
funds to his own private use.95
The recognition of such conduct as theft amounts to a broadening of the trad-
itional principles governing the crime. This is evident from the fact that it is the
trustee who is the holder of the account; it is he who has a legal claim against
the bank. He is contractually bound to administer a sum of money on behalf of
somebody else for a specific purpose, but breaches the terms of the contract by
disposing of the money for his own benefit. The complainant usually no longer
has any ownership in the money. The trustee breaches the law by failing to ful-
fil his contractual obligation. This is, in fact, a situation where the breach of con-
tract amounts to theft. What the trustee is stealing is neither a concrete movable
corporeal thing (such as notes and coins), nor credit, that is, a legal claim which
________________________

93 1956 2 SA 388 (A) 394.

94 Infra par 15(g).
95 Milne and Erleigh (7) 1951 1 SA 791 (A) 866C; Manuel 1953 4 SA 523 (A) 526; Kotze
1965 1 SA 118 (A) 124; Heller 1971 2 SA 29 (A) 42; Graham 1975 3 SA 569 (A) 576;
Visagie 1991 1 SA 177 (A) 182–182.
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 497

somebody else has against the bank and which he, the trustee, then disposes of
in breach of his obligation. It is, after all, the trustee himself who (according to
the law relating to trusts) has the legal claim against the bank. What he in fact
steals is an abstract sum of money which he is bound by contract to administer
or dispose of on behalf of his client for a specific purpose but which he then dis-
poses of for his own benefit, in breach of the obligation.96
Although this extension of the ambit of the crime has been criticised,97 it is
now firmly established that money in the form of credit can be stolen, and
people are regularly convicted of such theft. What is important, according to
the courts, is to consider the economic effect of X’s conduct, for example, the
reduction of Y’s bank credit.98
( f ) Two possible defences If money or credit is entrusted to X to be applied
by him for a certain purpose but he applies it for a different purpose, there are
two possible defences on which he can rely to escape being convicted of theft.
(i) First defence: the existence of a liquid fund Where X holds money in
trust on Y’s behalf, or receives money from Y with instructions that it be used
for a specific purpose, and X uses the money for a different purpose, he does
not commit theft if, at the time he uses the money, he has at his disposal a
liquid fund large enough to enable him to repay, if necessary, the money which
is supposed to accrue to Y, but which is, in fact, used for a different purpose.99
The reason for this is that “the very essence of a trust is the absence of risk”.100
A liquid fund is a fund from which money can be withdrawn without delay. An
agreement with a bank that the bank will allow an overdraft constitutes such a
liquid fund.101
(ii) Second defence: money received as part of a debtor-creditor relation-
ship A distinction is drawn between money held in trust for somebody and
money held by an agent or debtor by virtue of a debtor-creditor relationship.102
This distinction is of great importance in cases in which somebody receives
money from another as an agent.
________________________

96 Loubser 1978 De Jure 86 89; Hunt-Milton 607–610.

97 De Wet and Swanepoel 325 ff; Coetzee 1970 THRHR 369.
98 Solomon 1953 4 SA 518 (A) 522G; Sibiya 1955 4 SA 247 (A) 261; Reynecke supra
386C–D; Scoulides 1956 2 SA 388 (A) 394G; Kimmich 1996 2 SACR 200 (C) 210a–b,
h–i. In Kotze 1965 1 SA 118 (A) the Appeal Court held that if X receives cheques in
respect of funds due to Y, and should deposit the funds which the cheques represent in
favour of Y, but in fact deposits the cheques in settlement of his own private debts, he
commits theft.
99 Wessels 1933 TPD 313; Visagie 1991 1 SA 177 (A) 184.
100 Incorporated Law Society v Visse 1958 4 SA 115 (T) 118.
101 Wessels supra 315. In Visagie supra the Appeal Court doubted obiter whether the exist-
ence of a liquid fund will always offer a trustee a defence. According to the court, this
will depend on the circumstances of each case. However, the court admitted that the
existence of such a fund will always be strong evidence that X lacked the intention to
appropriate the funds entrusted to him.
102 The distinction is derived from s 183 of the old Transkeian Penal Code of 1886, which
was described in Golding (1896) 13 SC 210 215 as “fairly stating the law of the Colony
proper in regard to thefts by agents”. This section has regularly been followed by the
courts. See eg Reynecke 1972 4 SA 366 (T) 384. On the origin and application of the
section, see Loubser 195 ff; 1978 De Jure 86 93.
498 CRIMINAL LAW

Where X is an agent who holds money for another in trust, the spending of
the money by X will amount to theft, unless, as pointed out above, he has a
liquid fund of at least equivalent proportions from which to draw.103 However,
where Y lends money to X, and X receives the money as part of a debtor-
creditor relationship, whereupon he spends the money for a purpose which
differs from the purpose for which the money was originally given to him, he
does not commit theft. In such a case it is assumed that the person who handed
over the money, or on whose behalf it is held, relies upon X’s creditworthiness
and personal responsibility. If X spends the money he does not commit theft,
provided he duly enters the debt on the account which he must render to the
creditor.104
Whether the money is held in trust or under a debtor-creditor relationship is a
question of fact, which in practice may be very difficult to answer. The answer
to this question depends upon the intention of the parties when they enter the
agreement. However, the parties seldom consciously consider this difference
when entering an agreement. One can agree with the statement in Hunt-
Milton105 that “the basic question which has to be asked is: did the person
entitled (Y) visualize and expressly or impliedly authorize that X should use the
money without retaining an equivalent liquid fund? If the answer is yes, it is
debtor-creditor money; if no, it is ‘trust’ money”.
Some examples from our case law of money considered by the courts to be
held in trust are the following: money handed over to an attorney;106 money
handed over to an auctioneer;107 money handed over to a liquidator under the
Farmers’ Assistance Act 48 of 1935;108 and money handed over to an agent
with instructions to be used for a very specific purpose.109 Some examples of
money held to be money held in terms of a debtor-creditor relationship are the
following: money received by a bank from a client;110 and money received by a
broker.111
(g) The dishonest accounting of trust funds, or failure to account for such
funds If money is entrusted to X and he intentionally omits to account for what
he does with the money, or intentionally gives a false account of what he did
with the money, he commits theft, provided the circumstances are such that the
inference may be drawn that he appropriated the money for himself.112 In such
cases the fact that he had a liquid fund at his disposal does not offer him a
defence.

________________________

103 Weiss 1934 AD 41; Solomon 1953 4 SA 518 (A) 522–523; Manuel 1953 4 SA 523 (A)
526; Le Roux 1959 1 SA 808 (T); Gathercole 1964 1 SA 21 (A) 25; Harper 1981 2 SA
638 (D) 666–671.
104 Golding supra 215. Satisky 1915 CPD 574 579; Graham 1975 3 SA 569 (A) 576C–D.
105 Hunt-Milton 608.
106 Fraser 1928 AD 484.
107 Le Roux 1959 1 SA 808 (T).
108 Reynecke 1972 4 SA 366 (T).
109 Fouché 1958 3 SA 767 (T).
110 Kearny 1964 2 SA 495 (A) 502–503.
111 McPherson 1972 2 SA 348 (E).
112 S 183 of the old Transkeian Penal Code, followed in Golding (1896) 13 SC 210.
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 499

(h) Appropriation of overpayments Assume that, at the end of a month, em-

ployer Y erroneously pays his employee, X, two cheques instead of one, result-
ing in X receiving twice the salary he is entitled to. If X, aware of the mistake,
deposits the double salary in his banking account and spends the money which
he knows is not due to him, he commits theft according to our case law. It
cannot be suggested that Y has merely trusted X’s creditworthiness and has
merely created a creditor-debtor relationship, for the simple reason that such a
relationship is not created by mistake. It must be accepted that an implied
relationship of trust has been created and that X has received the money under a
certain condition, namely that it should be returned to Y. In any event, even if
one accepts that the overpayment has resulted in a debtor-creditor relationship,
X still commits theft since he omits to account properly for the money he has
received.113
(i) The unlawful “temporary” use of money Assume I have to give Z R100
urgently. I discover that I do not have my wallet with me at my office. How-
ever, I know that Y, who works in the office next to me, has a R100 note in the
top drawer of his desk. I go to Y’s office, ascertain that he is not there, open the
drawer of his desk and remove the R100 without his consent. I then give the
R100 to Z. Assume that I have always had the intention to give Y another R100
note, and that in fact I do so. Would I have committed the crime of theft of the
R100?
The courts’ answer to this question would be “yes”, for the following reason:
Money, according to the courts, is a res fungibilis, that is, a thing that is con-
sumed by use although it may be replaced by another similar type of thing. In
the discussion above114 of the unlawful temporary use of a thing it was stated
that X commits theft (as opposed to the mere non-criminal temporary use of a
thing) if he removes a res fungibilis (such as a can of oil or a bag of coal)
belonging to Y without Y’s consent with the intention of later replacing it with
another similar thing. The same rule applies if X removes money belonging to
Y without his consent with the intention of later replacing it with other money
of the same value.115
This rule applied by the court may, however, be criticised. The res fungibilis
exception to the rule that the temporary use of another’s property is not theft
leads to inequitable results. Apart from this, the courts’ view that the unlawful
temporary use of money constitutes theft is irreconcilable with the courts’ own
view that in the case of theft of money, what is appropriated should not be
viewed as corporeal notes or coins but as “an abstract sum of money” or “a unit
representing buying power” (“credit”). If X at all times intends to pay Y back

________________________

113 In Graham 1975 3 SA 569 (A) X was the managing director of a company which re-
ceived a cheque for more than R37 000 from Y. The amount was not owing. X knew
this, but nonetheless allowed the cheque to be paid into the company’s bank account, and
used the money to settle the company’s debts. The company was financially unsound
and its bank account was overdrawn. He was convicted of theft.
114 Supra par 14.
115 Milne and Erleigh (7) 1951 1 SA 791 (A) 865; Herholdt 1957 3 SA 236 (A) 257;
Visagie 1991 1 SA 177 (A) 183.
500 CRIMINAL LAW

an equal amount of money, he does not have the intention of permanently de-
priving Y of the money’s value.116
16 Theft a continuing crime; no accessories after the fact The rules re-
lating to participation and accessories after the fact in respect of theft are highly
unsatisfactory. The reason for this is, first, the disregard, especially in the earlier
cases, of the concept of appropriation and in particular of the intention to appro-
priate and, secondly, the incorporation into our law of the rule that theft is a
continuing crime (delictum continuum).
The rule that theft is a continuing crime means that the theft continues to be
committed as long as the stolen property remains in the possession of the thief
or somebody who has participated in the theft or somebody who acts on behalf
of such a person.117 This rule was unknown in our common law118 and was intro-
duced into our law in 1876 by Lord De Villiers in Philander Jacobs.119 Since
then this rule has been regularly applied in our case law.120
The rule has two important effects. The first is procedural in nature: if X steals
the property in an area falling outside the territorial jurisdiction of the court he
is nonetheless guilty of theft and may be tried and convicted if he is found in
possession of the stolen property within the court’s territory;121 since the crime
continues as long as he possesses the property; his possession of the property
while inside the court’s territory means that he commits the offence inside the
territory over which the court has jurisdiction and that the court can therefore
try him for theft committed inside its jurisdiction.
The second effect of the rule that theft is a continuing crime is that, generally
speaking, our law draws no distinction between perpetrators and accessories
after the fact. As pointed out above,122 an accessory after the fact is somebody
who helps the perpetrator at a stage when the original crime has already been
completed. Since theft is a continuing crime, the person who after the commis-
sion of the theft assists the thief (who is still in possession of the property) to
conceal the property does not qualify as an accessory after the fact, because his
assistance is rendered at a time when the original crime (theft) is still uncom-
pleted. The person rendering the assistance is therefore guilty of theft, and not
merely of being an accessory after the fact.123
________________________

116 See the justifiable criticism of the rule applied by the courts by Loubser 1978 De Jure
86 91.
117 Attia 1937 TPD 102 106; Von Elling 1945 AD 234 246.
118 See the discussion of this rule in De Wet and Swanepoel 349, in which the application
of the rule in our law is strongly criticised.
119 1876 Buch 171.
120 Mlooi 1925 AD 131 138; Harmse 1944 AD 295 300; Von Elling 1945 AD 234 245–246;
Bhardu 1945 AD 813 825; Sexaba 1957 4 SA 280 (E) 281; Brand 1960 3 SA 637 (A)
640–641; Kruger 1989 1 SA 785 (A) 793D–E; Cassiem 2001 1 SACR 489 (SCA) 492–
493.
121 Makhutla 1968 2 SA 768 (O); Kruger supra 793; Dayizana 1989 1 SA 919 (E).
122 Supra VII D.
123 Brett and Levy 1915 TPD 53 (X sold wagons for another in full knowledge that they had
been stolen); Mlooi supra 138, 142; Harmse supra 330; Von Elling supra (at the request
of Y, who had stolen the vehicle, X drove it from one garage to another with the inten-
tion of concealing it from the owner: he was convicted of theft as a perpetrator); Bhardu
supra; Naryan 1998 2 SACR 345 (W) 356.
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 501

Another reason why a person can, as a rule, not be convicted of being an acces-
sory after the fact to theft is the fact that somebody who, after the commission
of the original theft, assists the thief to conceal the property also has the inten-
tion permanently to deprive the owner, and, especially in the earlier cases, the
courts were so blinded by the requirement of intention permanently to deprive
the owner that they did not require any intention to appropriate the property. If
one assumes that an intention to appropriate is required for theft, it is indeed
possible to differentiate between, on the one hand, the person who intentionally
appropriates the property, and on the other, the person who, without entertain-
ing any intention to appropriate, thereafter assists the previous person by merely
temporarily looking after the property or concealing it.
One of the very few instances where, in terms of the rules applied by the
courts, it would, by way of exception, indeed be possible to be guilty of being
an accessory after the fact to theft, is where X assists Z, the original thief, at a
stage after Z had already gotten rid of the stolen property, by concealing Z him-
self from the police or by assisting him to escape. Since Z is no longer in posses-
sion of the stolen property at the time that X renders his assistance, he (Z) is not
busy committing the “continuous” crime of theft, and therefore X’s assistance
can, according to general principles, be sufficient to render him guilty of being
an accessory after the fact to theft.
If X agrees with Y, the actual thief, before the theft is committed that after
the property is taken he will receive it (perhaps at a price) and in fact does, then
X is in any event according to general principles not merely an accessory after
the fact but in fact a co-perpetrator.124 In this case X’s act did not commence
only after Z had obtained the property but already before Z had committed his
act. If, on the other hand, X has innocently come into possession of property but
discovers afterwards that it is stolen and then commits an act of appropriation
in respect of the property, he commits an independent act of theft.125
17 No difference between perpetrators and accomplices in theft Just as
the courts generally do not differentiate between perpetrators and accessories
after the fact when it comes to theft, they do not differentiate between perpet-
rators and accomplices in this crime. The reason for this unfortunate equation of
the two groups of participants can once again be traced to the courts’ disregard
of the importance of the requirements of an act of appropriation and an inten-
tion to appropriate. If one ignores the appropriation concept model for this crime,
applying (as the courts did) only the classical and English-law model for the
crime, it is not possible to distinguish between perpetrators and accomplices.
Assume that X carries Y’s box containing bottles of wine out of Y’s house
and later drinks all the wine himself. As a favour to his friend X, Z only gives
him advice as to how to get hold of the wine (or merely stands guard while X
removes the wine) but never receives the wine himself. If one adopts the appro-
priation concept model, it is easy to draw a distinction in this set of facts between
a perpetrator and an accomplice: X is a perpetrator because he appropriated

________________________

124 Mlooi supra 138; Ex parte Minister of Justice: in re R v Maserow 1942 AD 164 170;
Von Elling supra 240–241.
125 Attia 1937 TPD 102 105–106; Bazi 1943 EDL 222 226; Kumbe 1962 3 SA 197 (N) 199.
502 CRIMINAL LAW

the wine, but Z is only an accomplice because he neither committed an act of

appropriation nor had an intention to appropriate, although he intentionally
gave X advice or assisted him and in so doing furthered the commission of the
crime. The mere rendering of assistance to or facilitation of another’s act of
appropriation does not in itself constitute an act of appropriation.
“Appropriate” means “to make something your own”. If, as in the above
hypothetical set of facts, Z only assists X to “make the wine X’s”, it cannot be
said that Z had also appropriated the wine – that is, “made it his own”. If, on
the other hand, one does not apply the appropriation concept model but requires
only a contrectatio committed with the intention permanently to deprive the
owner of the thing, the two categories of participants (perpetrators and accom-
plices) merge: Z must then be regarded as a perpetrator too, since his conduct
and intention, like that of X, also complies with these requirements. Even if one
assumes that theft is a continuous crime, it ought still to be possible, by apply-
ing the appropriation concept model, to distinguish between a perpetrator (ie, a
person who (continuously) appropriates the thing) and an accomplice (ie, some-
body who only assists without himself also appropriating the thing).126
The unjustified equation of perpetrator, accomplice and accessory after the
fact described above must be regretted. In other crimes a distinction is drawn
between these three groups of persons, and there is no reason why theft should
be an exception. The confusion in our case law on this issue can be traced dir-
ectly to the courts’ adoption of the wrong model for the definition of the crime.

B REMOVAL OF PROPERTY FOR USE

1 Background It was pointed out above127 that the temporary use of another’s
property without consent ( furtum usus) was treated as a form of theft in both
Roman and Roman-Dutch law (although some of the Roman-Dutch writers were
of the opinion that such use by somebody who was already in possession of the
property should no longer be punishable). In Sibiya128 the Appeal Court finally
decided that such conduct was not a form of theft and was not punishable. In an
obvious attempt to make such conduct punishable section 1(1) of the General
Law Amendment Act 50 of 1956 was enacted.

2 Definition Section 1(1) of the General Law Amendment Act 50 of

1956 reads as follows:
“Any person who, without a bona fide claim of right and without the con-
sent of the owner or the person having control thereof, removes any prop-
erty from the control of the owner or such person with intent to use it for
his own purposes without the consent of the owner or any other person
competent to give such consent, whether or not he intends throughout to
return the property

continued
________________________

126 De Wet and Swanepoel 357.

127 Supra XVIII A 14.
128 1955 4 SA 247 (A).
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 503

to the owner or person from whose control he removes it, shall, unless it is
proved that such person, at the time of the removal, had reasonable grounds
for believing that the owner or such other person would have consented to
such use if he had known about it, be guilty of an offence and the court
convicting him may impose upon him any penalty which may lawfully be
imposed for theft.”

3 Elements of crime The elements of the crime are the following: (a) the
removal of (b) property (c) from control (d ) unlawfully, that is, without consent
(e) with intent to use it.
4 Criticism of formulation The subsection is very badly formulated.129
According to the long title of the Act its aim is inter alia “to declare the unlawful
appropriation of the use of another’s property an offence”. The legislature did
not succeed in its aim of punishing this type of conduct.
In common law furtum usus could be committed in two ways:
1. It could be committed by extra-contractual borrowing, that is, where X
takes and removes Y’s property which is in Y’s possession without consent
and uses it temporarily. In other words, X uses it with the intention of giving
it back to Y after the use. An example of this type of situation is where X
takes and removes Y’s motor car, which is in Y’s possession, without Y’s
consent, drives the car, and then brings it back to Y.
2. It could be committed by extra-contractual use of the thing, that is, where
X, who is already in possession of the property because it has, for example,
been entrusted to him for safekeeping, uses the property temporarily with-
out the owner’s (Y’s) consent. An example of this type of situation is the
following: Y goes on holiday but fears that his lawnmower may be stolen
while he is away. He accordingly asks X, his neighbour, to keep it for him
and to look after it while he is away. The agreement between X and Y in no
way implies that X may use the lawnmower. X nevertheless uses the lawn-
mower to cut his lawn while Y is away.
If the legislature wanted to restore the common law, it succeeded only partially
in its goal.
As far as extra-contractual borrowing is concerned, the subsection only in-
directly succeeds in covering such conduct: what the subsection punishes is not
the unauthorised use of another’s property but the removal of another’s prop-
erty in order to use it without consent. The emphasis is not on the use but on the
removal. If X removes property in order to use it without consent but in fact
never uses it, he nevertheless contravenes the subsection.
As far as extra-contractual use is concerned, it is difficult for the state to
prove that the unauthorised use of property by somebody already in possession
of it contravenes the subsection, because in most (though not all)130 cases in
________________________

129 See the criticism by De Wet in De Wet and Swanepoel 339–342 as well as in 1956
THRHR 250 ff; Naudé 1961 THRHR 285; Snyman 1977 SACC 11 18 ff; 2001 SACJ
217; Burchell 2001 SACJ 225.
130 “The person who has the detention may or may not be in control of the article depending
on the circumstances under which he acquired the article. Such factors as the management
[continued]
504 CRIMINAL LAW

which X is in control of property, the control is of such a nature that use by X

of the property cannot be said to involve a removal from another’s control,
since X already has control of the property.
The subsection is formulated in typical positivistic style. The legislature
seemed to lack faith in the courts’ ability to apply the general principles of crim-
inal law. It laboriously tried to cram all the rules relating to unlawfulness (ie, the
absence of consent) and culpability into the subsection.131 However, in doing so
it inadvertently created opportunities for X to escape its provisions. The section
ought to be re-enacted simply to read that any person who unlawfully and inten-
tionally uses another’s movable, corporeal property, irrespective of whether it
is in his possession or not, without the consent of such person or of the person
having the control of such property, commits an offence.
5 Removal What the subsection punishes is not the unauthorised use of
another’s property (as was the case in common law) but the removal of another’s
property in order to use it without consent. The emphasis is not on the use but
on the removal.132 If X removes property in order to use it without consent but
in fact never uses it, he nevertheless contravenes the subsection. On the other
hand, if X uses Y’s computer or television set throughout the year without Y’s
consent without ever removing it from where it is placed, he does not contra-
vene the subsection. This is not reconcilable with the legislature’s declared aim
as expressed in the long title of the Act, namely “to declare the unlawful appro-
priation of the use of another’s property an offence”.
6 Property Though the word “property” is not defined in the legislation, it is
clear from the history and purpose of the provision that the word must be con-
fined to property capable of being stolen, that is, movable, corporeal articles
which form part of commercial life.133
7 Somebody else’s control The word “control” used by the legislature plays
a very important role in the construction of the crime. What is punishable is not
the removal for use of property which is in another’s possession, but such
removal which is in another’s control.
The word control has been described as “an unfortunate word of wide and
ambiguous import”.134 X can have control over an article even if it is not in his
________________________

of the article and the regulation of its use must be taken into account. In order to deter-
mine these matters we must look to the nature of the article and the use to which it is in-
tended to be put” – per Diemont J in Seeiso 1958 2 SA 231 (GW) 233G–H, endorsed by
the Supreme Court of Appeal in Rheeder 2000 2 SACR 558 (SCA) 564. Both these cases
are examples of situations in which X was convicted of contravening the subsection
despite his having some form of control over the property. In Rheeder supra 564b–c the
Supreme Court of Appeal held that the word “control” as used in the subsection must be
restricted to full control, that is physical possession together with the final discretion
(“geoorloofde seggenskap”) over it. See the discussion of this case infra par 7.
131 The culpability requirement is covered by the following phrases: “without a bona fide
claim of right” and “unless it is proved that such person . . . had reasonable grounds for
believing that the owner . . . would have consented to such use”.
132 Dunya 1961 3 SA 644 (O); Motiwane 1974 4 SA 683 (NC); Schwartz 1980 4 SA 588
(T) 592.
133 For a discussion of property capable of being stolen, see supra XVIII A 8.
134 Seeiso 1958 2 SA 231 (GW) 233H.
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 505

presence, as where he parks his car in the street and then works in his office
some distance away. Although the words “possession” and “control” do not
have the same meaning, they are nevertheless closely related in meaning. This
is the reason why most cases of extra-contractual use (ie, the use of a thing by
somebody who is already in possession of the property) falls outside the ambit
of the provision.
There may be cases where somebody who can be said to have some type of
control over the property, may contravene the subsection. This is where he does
not have full control over the property, but only partial control over it, such as
where he is only a depository, that is, where he merely has the detentio of the
property. If X leaves his coat for a few hours in the care of a depository at an
airport while he does something else, the person who has the “control” over the
coat has no right to wear it himself to fend off the cold. Again, if X leaves his
car at a garage for service, the mechanic at the garage who has the “control”
over the car may not drive it to the next town to visit his girlfriend. To ascertain
whether a person contravenes the subsection when he takes and uses property
placed in his control for his own private purposes, depends upon the circum-
stances of each case, including the nature of the property, the way it is usually
utilised and especially the terms under which the owner has placed it in such a
person’s hands.135
Thus, in Seeiso136 it was held that X contravened the provision in the follow-
ing circumstances: Y, the owner of a car, delivered it to X to have the seating of
the car upholstered. Y locked the steering wheel and took the key of the car with
him. X then broke the lock of the steering wheel, started the car by meddling
with the ignition wiring of the car and then drove around in it. It was held that
the terms of the agreement between X and Y was not such that X obtained the
“control” (as this word is used in the subsection) of the car.
Again, in Rheeder 137 X, who was a police officer in charge of storage prem-
ises where stolen motor vehicles found by the police were stored until they could
be handed back to their lawful owners, used some of the vehicles for private
purposes, such as using one as a wedding car and undertaking a trip in it to the
Kruger National Park. He was convicted under the subsection, the Supreme
Court of Appeal holding that the word “control” as used in the subsection should
be strictly interpreted as meaning not only mere physical possession, but
complete control, that is, physical possession together with the legitimate final
discretion as to its use (“liggaamlike besit met gepaardgaande geoorloofde
seggenskap oor die voertuig”).138 According to the court X had control over the
vehicles in a restricted administrative capacity only.139 By narrowing the mean-
ing of the word “control” as used in the subsection, the Supreme Court of
Appeal in this case made it easier for the state to obtain a conviction in cases of
extra-contractual use.
________________________

135 Rheeder 2000 2 SACR 558 (SCA) 564b–e.

136 1958 2 SA 231 (GW).
137 2000 2 SACR 558 (SCA), discussed by Snyman 2001 SACJ 217; Burchell 2001 SACJ
225 (who criticises the judgment).
138 At 564b–c.
139 At 565c–d.
506 CRIMINAL LAW

Cases resembling extra-contractual borrowing (ie, where X removes property

for use in circumstances in which the property is in somebody else’s possession)
are easier to accommodate within the ambit of the provision. Once again it is
important to bear in mind that it is immaterial whether X in fact uses the prop-
erty. The mere removal of the property with the required intention is sufficient
to render X guilty (assuming, of course, that the other requirements for liability
have also been complied with).
8 Unlawfulness, that is, absence of consent One of the most important
reasons for the (unnecessary) complicated structure of the crime is the curious
double way in which consent must be absent. X does not contravene the sub-
section if he removes Y’s property without Y’s consent in order to use it. He
contravenes it only if he removes it without Y’s consent in order to use it with-
out his consent. If X removes the property without consent but with the inten-
tion of using it with consent, he is not guilty. Neither is he guilty if he removes
it with consent but intends to use it later without consent. Thus, if X takes Y’s
computer without his consent but intends to phone him later to ask his consent,
he is not guilty.
What is the position if X has obtained Y’s “consent” to the removal of the
property, but such “consent” was based upon false pretences? In Schwartz140 X
requested Y to lend him (X) his (Y’s) motor car so that he (X) could transport a
spare wheel to another motor car one and a half kilometres away. Relying on
this pretence, Y lent X his motor car. However, at the time that X made the re-
quest, he already intended to drive much further with the car, and in fact did so.
The court held that although X had misled Y about the reason for borrowing the
car, Y’s consent to the taking of the car had been a valid consent and that X had
accordingly not contravened the section. It is submitted that this decision is
wrong. In cases of theft and theft by false pretences, consent obtained by fraud
or false pretences is not regarded as valid consent.141 There is no reason why
the same principles ought not to apply to the crime created in this section.142
9 Intent The crime created in the subsection is a crime of double intent. X
must, firstly, have the intent to remove the property and, secondly, the intent to
use it for his own purposes without consent.
(a) Intent to remove The intent requirement is referred to in a clumsy way
by the legislature. The first aspect of the requirement mentioned above, namely
the intent to remove, is not mentioned at all. However, in the light of the history
________________________

140 1980 4 SA 588 (T).

141 As to theft, see supra XVIII A 9, and as to theft by false pretences, see infra XIX C.
142 There can be no doubt that in enacting this section the legislature intended to rectify what
was perceived to be a lacuna in the law relating to theft. The section must therefore be
interpreted in the light of the provisions of the common law. Just as the word “property”,
as used in this section, must be interpreted as bearing the same meaning as “thing” or “res”
in the crime of theft (ie, a movable corporeal thing in commercio), the word “consent”
as used in the section must be interpreted as bearing the same meaning as the correspond-
ing term in the common-law crime of theft. Thus, if X borrows Y’s laptop computer
pretending merely to show it to his wife, and Y, relying on this pretence, consents to
X’s removal of the typewriter, whereas X already at the time of the request intended to
type a whole book with it, and in fact does so, Y’s “consent” should not be regarded as
valid consent, and X should be convicted of contravening the section.
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 507

and background of this statutory offence, one must assume that a mere negligent
removal cannot sustain a conviction. X must be aware that it is a movable,
corporeal thing that he is removing. He must also know that the owner or the
person having control thereof has not consented to the taking. This aspect of the
intent requirement is implied in the old-fashioned expression used by the legis-
lature “without a bona fide claim of right”.
If X thinks that the owner or person having the control of the property would
have consented to the taking, he has a defence, but, typical of the outdated way
in which the intent requirement is expressed in the legislation, this belief must
be reasonable. The requirement of a reasonable belief stems from the era before
our courts have adopted a subjective test for intent, and highlights the outdated
style of formulation of the subsection. What is more, the onus of proving the
existence of a reasonable belief is placed on X. It is submitted that this shifting
of the onus is unconstitutional.143
(b) Intent to use the thing without consent The second component of the
intent requirement is the intent which X must have of doing something with the
property, namely to use it for his own purposes without consent. Once again the
clumsy formulation leads to certain consequences which are difficult to recon-
cile with the broad intent of the legislature (expressed in the long title of the Act)
to punish the unlawful appropriation of the use of another’s property. The state
must prove that X not only removed the property without consent, but also that
he intended to use it without consent. Thus, if X removes the property without
consent but with the intention of using it with consent, he is not guilty. Neither
is he guilty if he removes with consent but intends to use it later without con-
sent. On the other hand, if X removes property with intent to use it without con-
sent but in fact never uses it, he contravenes the subsection.
The subsection further requires that X must intend to use the property “for his
own purposes”. Strictly speaking, X does not contravene the subsection if he
intends to use the property for somebody else’s benefit, for example, where he
removes Y’s lawnmower in order to cut, not his (X’s) own lawn, but Z’s. This
restriction of the ordinary meaning of the word “use” is foreign to the provisions
of the common law relating to furtum usus. Nevertheless, there seems to be no
reason for departing from the ordinary, plain meaning of the words “for his
own purposes”, and for this reason it is submitted that X does not contravene
the subsection if in the abovementioned example he removes the lawnmower
merely to cut Z’s lawn.
As far as the meaning of the word “use” is concerned, it must be borne in
mind that merely keeping property in one’s possession is not the same as using
it.144 To “use” a thing implies that a person deals with it in such a way that it
still exists afterwards. If X uses the property in such a way that he in fact con-
sumes it, this amounts to appropriation of the property and thus to theft, as
where he drinks another’s bottle of wine or uses another’s battery until it is flat.
________________________

143 The reasons for this submission may be found in the following decisions of the Consti-
tutional Court relating to analogous statutory provisions: Bhulwana 1995 2 SACR 108
(CC); Mbatha 1996 1 SACR 371 (CC); Julies 1996 2 SACR 108 (CC); Coetzee 1997 1
SACR 379 (CC); Ntsele 1997 2 SACR 740 (CC).
144 Mtshali 1960 4 SA 252 (N); Terblanche 2007 1 SACR 545 (C) 554–555.
508 CRIMINAL LAW

C ROBBERY

1 Definition Robbery consists in theft of property by unlawfully and

intentionally using:
(a) violence to take the property from somebody else; or
(b) threats of violence to induce the possessor of the property to submit to
the taking of the property.145
It is customary to describe the crime briefly as “theft by violence”.146 Though
incomplete, such a description does reflect the essence of the crime.

2 Elements of the crime The elements of the crime are the following: (a) the
theft of property (b) through the use of either violence or threats of violence (c)
a causal link between the violence and the taking of the property (d ) unlawful-
ness and (e) intention.
3 Origin and character Robbery or rapina was regarded in common law as
an aggravated form of theft, namely theft by means of violence.147 Today it is
regarded as a separate crime, distinct from theft, although all the requirements
for theft apply to robbery too. These requirements will not be repeated here. It
is sufficient, as far as these requirements are concerned, to point out the follow-
ing: as in theft, only movable corporeal property in commercio can form the
object of robbery.148 The owner must not, of course, have consented to the
taking, and X must have known that consent was lacking. Thus, he does not
commit robbery if, using violence, he takes property belonging to another in the
bona fide though erroneous belief that it is his own property which he had lost
but has now found.149
4 Violence It follows from the definition of robbery that the crime can be
committed in two ways, namely by means of either violence or threats of
violence.
As far as the real use of violence is concerned, it must be directed at the per-
son of Y, that is, against his physical integrity.150 The violence may be slight,
and Y need not necessarily be injured. Robbery is also committed if X injures Y
and then deprives him of the property while he (Y) is physically out of action,
provided that at the time of the assault X already had the intention of putting Y
out of action and then taking the property.151
5 Threats of violence Robbery can be committed even though there is no real
violence directed at Y; a threat of physical harm directed at Y if he does not
________________________

145 The definitions in Hunt-Milton 642 and Burchell and Milton 817 are substantially similar.
146 Eg Sitole 1957 4 SA 691 (N) 693B; Ex parte Minister of Justice: in re R v Gesa; R v De
Jongh 1959 1 SA 234 (A) 238C–D; Benjamin 1980 1 SA 950 (A) 958H.
147 Van Leeuwen RHR 4 38 2; Voet 47 8 1 pr; Matthaeus 47 2 1 1; Huber HR 6 6 1; Van
der Keessel 47 8 1; Van der Linden 2 6 3.
148 On the meaning of “property” in the definition of theft, see supra XVIII A 8.
149 Matthaeus 47 2 1 2; Huber HR 6 6 3; Fisher 1970 3 SA 446 (RA) 447C; Johnson 1977
4 SA 116 (RA); Mafadza 1987 2 SA 113 (V).
150 Pachai 1962 4 SA 246 (T) 249; Duarte 1965 1 PH H83 (T).
151 Mokoena 1975 4 SA 295 (O); L 1982 2 SA 133 (T).
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 509

not hand over the property or acquiesce in its removal, is sufficient.152 In such a
case Y simply submits to the taking of the property because of the threats. It is
therefore not required that Y be put out of action.
As far as could be ascertained, the courts have not yet expressly held what the
nature of the threat should be in order to lead to a conviction of robbery. It is
submitted that only a threat which would lead to a conviction of assault quali-
fies as a threat for the purposes of robbery.153 This means that the threat should
comply with the following requirements:
(a) The threat must be one of physical violence. A threat, not of physical vio-
lence, but merely of damaging Y’s property or of infringing his reputation
(such as a threat by X that he will reveal to Y’s spouse that Y has commit-
ted adultery) is insufficient to lead to a conviction of robbery, although it
may amount to extortion.
(b) The threat must be one of immediate violence. A threat only to use violence
some day in the future is insufficient.
(c) The threat must be one of physical violence against Y himself. A threat of
violence against somebody else (such as Y’s spouse or child) is therefore
insufficient to lead to a conviction of robbery, although it may amount to
extortion.
The threat of violence may be express or implied. If X, dressed like a robber,
waylays Y and Z in a shop’s office, orders Y to hand over money and assaults
Z to prevent him from escaping, the assault may be viewed as an implied threat
by X of physical harm to Y if he does not hand over the money.154 Whether Y’s
will is overcome by fear must, it is submitted, be judged subjectively: it ought
not to be a defence to aver that a reasonable person would not have succumbed
to the threats.
6 Causal link between violence and taking The property must be obtained
by X as a result of the violence or threat of violence.155 The premise is that the
violence must precede the taking, and that robbery is not committed if the vio-
lence is used to retain a thing already stolen or to facilitate escape. If this hap-
pens, X commits theft and assault.156 The converse is also true: if X assaults Y,
after the assault discovers that Y has by chance dropped some of his property,
and only then for the first time forms the intention of taking the property, he
does not commit robbery if he picks up the property and appropriates it; he may,
however, be charged with and convicted of assault and theft.157
The rule, stated earlier, that the violence must precede the taking must, how-
ever, be qualified: robbery may in certain circumstances be committed even
________________________

152 Ex parte Minister of Justice: in re R v Gesa; R v De Jongh 1959 1 SA 234 (A) 958–959;
Moloto 1982 1 SA 844 (A) 850B–C; Kgoyane 1982 4 SA 133 (T).
153 On assault in the form of threats of violence, see supra XV A 4(c).
154 MacDonald 1980 2 SA 939 (A), but contrast Elbrecht 1977 4 SA 165 (C).
155 Moerane 1962 4 SA 105 (T) 106D; Pachai supra 249F–G; Marais 1969 4 SA 532 (NC)
533A, and cases in next footnote.
156 Ngoyo supra 463–464; Marais supra 533B–C; L 1982 2 SA 768 (ZH) 770.
157 Moerane supra; Marais supra; Jabulani 1980 1 SA 331 (D); Matjeke 1980 4 SA 267
(B).
510 CRIMINAL LAW

though the violence follows the completion of the theft. This will be the case if,
having regard to the time and place of X’s act, there is such a close link between
the theft and the violence that they may be regarded as connecting components
of one and the same action. Thus, in Yolelo158 X was found in possession of Y’s
property before he could leave Y’s house. X’s ensuing assault on Y was re-
garded as so closely connected with the process of taking the property that X
was convicted of robbery.
In Pachai159 X made threatening telephone calls to a shopkeeper Y. When X
later threatened Y in his shop, Y handed him the goods he demanded, not be-
cause he feared X, but because he had previously arranged with the police to set
a trap for X. X was convicted of attempted robbery only.
7 Property need not be in Y’s immediate vicinity The property need not be
taken from the person of Y or in his presence. The lapse of time between the
violence and the taking, as well as the distance between the place where the
violence occurred and the place of taking, is only of evidential value in deciding
whether the violence and the taking formed part of the same continuous trans-
action, and whether there was a causal link between the violence and the
taking.160 In Ex parte Minister van Justisie: in re S v Seekoei161 the Appeal
Court confirmed the rule that the property need not be taken in the presence of
the victim. In this case X attacked Y and forced her to hand him the keys of her
shop which was two kilometres away. He then tied her to a pole, using barbed
wire, and drove her car to the shop, where he stole money and other property.
The Appeal Court held that X should have been convicted of robbery: the fact
that he did not take the property in Y’s presence afforded him no defence.
8 The bag-snatching cases If X snatches Y’s handbag out of her hands in a
sudden and unexpected movement (with no resistance from Y, because it hap-
pened unexpectedly), X commits robbery, and not merely theft.162 In this type
of case X knows very well that he can gain possession of the handbag only if he
snatches it from the woman in a quick and unexpected movement. For handbag
snatching to amount to robbery it is sufficient if X intentionally uses force in
order to overcome the hold which Y has on the bag for the purpose of ordinarily

________________________

158 1981 1 SA 1002 (A) 1015. It is submitted that X’s act of appropriation in this case was
not yet complete at the time that he was discovered by Y. It would have been complete
only once he had left the house taking the stolen goods. An act of appropriation is com-
plete only once X has gained full control over the property, and X has not yet gained
full control if he is surprised by the owner of the house at a stage where he has merely
placed the goods in a certain room of the house. At that stage he can at most be guilty of
attempted theft. For this reason it is submitted that the conviction of robbery in this case
is not contrary to the general rule that the taking should not precede the violence. Yolelo’s
case was followed in Nteco 2004 1 SACR 79 (NC) 84.
159 1962 4 SA 246 (T). See also Davies 1956 3 SA 52 (A) 60.
160 Dhlamini 1975 2 SA 524 (D), discussed by Forsyth 1975 SALJ 377 ff.
161 1984 4 SA 690 (A), discussed by Matzukis 1985 SALJ 251 ff.
162 Sithole 1981 1 SA 1186 (N) 1190; Mofokeng 1982 4 SA 147 (T); Witbooi 1984 1 SA 242
(C); Mohamed 1999 1 SACR 287 (O). Contra Mati 2002 1 SACR 323 (C). In Salmans
2006 1 SACR 333 (C), however, the same Cape Court declined to follow Mati, holding
that such conduct constitutes robbery.
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 511

carrying or holding it, or if X intentionally uses force to prevent or forestall resist-

ance which he thinks might be offered to the taking if Y were to become aware
of his intentions.163 In this respect the courts apply what has been described as
the concept of “anticipated resistance” in order to treat bagsnatching as rob-
bery.164 Any force applied to the person of Y, however slight, is sufficient to
constitute robbery.165
If Y does offer resistance, because, for example, she clings to her handbag
while X drags her, there is, of course, no difficulty in holding that there is
actual violence and that X is liable for robbery.166 It is, however, not required
that Y should actually have offered resistance to the taking.167
If X snatches a bag protruding from Y’s jacket pocket, without any violence
directed at the person of Y, he is guilty of theft only.168 It is submitted that if Y
merely balances an object on her head or in the palm of her hand without hold-
ing or clutching it with her hand, and X simply snatches it away and runs away
with it, no robbery, but only theft, is committed, because there is no violence
directed at the person of Y.
9 Punishment
(a) General In the discussions above of the punishment for rape169 and
murder,170 the prescribed minimum sentences for those crimes were set out. Sec-
tion 51 of the Criminal Law Amendment Act 105 of 1997 also lays down min-
imum sentences for robbery. In the discussions above of the punishment for rape
and murder it was pointed out that capital punishment and corporal punishment
may no longer be imposed. This principle also applies to robbery. Since a fine
is not a suitable form of punishment for so serious a crime as robbery, the only
type of punishment that comes into the picture for this crime is imprisonment.
(b) Prescribed minimum periods of imprisonment As far as the period of im-
prisonment which must be imposed upon a conviction of robbery is concerned,
before 1997 the courts used to have a free discretion. However, section 51 of the
Criminal Law Amendment Act 105 of 1997 now provides for certain minimum
periods of imprisonment to be imposed by a court upon convicting X of certain
types of robbery.
________________________

163 Sithole supra 1190B–C.

164 Hunt-Milton 656; Mohamed supra 290f–g.
165 Salmans 2006 1 SACR 333 (C) 340b–c. For an analysis of the case law regarding these
“bag-snatching cases”, see Hoctor 2012 SACJ 361. Hoctor argues (correctly, it is sub-
mitted) that this development of the law concerning robbery is not unconstitutional and
that it is consistent with the structure and function of the crime.
166 Mogala 1978 2 SA 412 (A); Hlatswayo 1980 3 SA 425 (O).
167 Sithole 1981 1 SA 1186 (N) 1190C; Mohamed supra 290j.
168 Gqalowe 1992 2 SACR 172 (E) 174; M 1996 2 SACR 132 (T) (X grabbed a cell phone
attached to Y’s belt with a plastic clip and ran away with it). In these two cases the sto-
len article was not in Y’s grip. In Mati 2002 1 SACR 323 (C) the court likewise con-
victed X only of theft after he had just grabbed Y’s cell phone out of her hand. The
court in this case expressed its doubts as to the correctness of the decisions in Sithole
supra and Witbooi supra.
169 Supra XI B 9.
170 Supra XIV A 8.
512 CRIMINAL LAW

Section 51 provides that if a person has been convicted of robbery (a) when
there are aggravating circumstances or (b) involving the taking of a motor vehicle
(“motor hijacking”) a court must impose the following minimum sentences:
(1) fifteen years in respect of a first offender;
(2) twenty years in respect of a second offender;
(3) twenty five years in respect of a third or subsequent offender.
(c) Avoidance of minimum sentences There are always cases where a court
is of the opinion that the imposition of one of the above minimum periods of
imprisonment would, considering the specific circumstances of the case, be very
harsh and unjust. In subsection (3)(a) of section 51 the legislature has created a
mechanism whereby a court may be freed from the obligation of imposing a
minimum sentence.
According to subsection (3)(a) of section 51 a court is not bound to impose
one of the minimum periods of imprisonment set out above, if there are substan-
tial and compelling circumstances which justify the imposition of a lesser sen-
tence than the prescribed one. If such circumstances exist, a court may then
impose a period of imprisonment which is less than the period prescribed by the
legislature. The crucial words in the Act relating to the avoidance of mandatory
minimum sentences are the words “substantial and compelling circumstances”.
In Malgas 171 the Supreme Court of Appeal considered the interpretation of
these words and formulated a relatively long list of rules to be kept in mind by
courts when interpreting the words. Without setting out all these rules, it may be
stated that perhaps the most important of them provides that if a court is sat-
isfied that the circumstances of the case render the prescribed sentence unjust in
that it would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice would be done by imposing that sentence, it is
entitled to impose a lesser sentence.
In Dodo172 the Constitutional Court held that the introduction by the legis-
lature of minimum sentences in section 51 is not unconstitutional.

D RECEIVING STOLEN PROPERTY

1 Definition A person commits the crime of receiving stolen property

knowing it to be stolen if he unlawfully and intentionally receives into his
possession property knowing, at the time that he does so, that it has been
stolen.

2 Elements of crime The elements of the crime are the following: (a) receiv-
ing (b) stolen property, which takes place (c) unlawfully and (d ) intentionally
(which includes knowledge of the fact that the goods are stolen property).
3 Appellation, origin and overlapping with theft The crime discussed here
is known as “receiving stolen property knowing it to be stolen”. Because of its

________________________

171 2001 1 SACR 469 (SCA) 481f–482g (par 25).

172 2001 1 SACR 594 (CC).
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 513

long name it will, for the sake of convenience, be referred to below simply as
“receiving”.
In Roman law receivers of stolen property were generally regarded as thieves
themselves173 and in Roman-Dutch law either as thieves174 or as “helers” (recep-
tores or receptatores).175 “Heling” was a common-law crime closely resembling
what is now known as “receiving”. “Heling” is, however, no longer charged,
having been superseded by “receiving”. The crime of “receiving”, as we know
it today, was unknown in common law (although it closely resembles “heling”),
and was developed by the Cape courts in the nineteenth century under the influ-
ence of English law.176
A peculiarity of this crime is that it coincides with theft. A person who
commits this crime is simultaneously an accessory after the fact to theft.177 As
emerged from the discussion above of theft,178 accessories after the fact to theft
are normally treated in our law as thieves (ie, perpetrators), particularly because
of the rule that theft is a continuing crime. Thus, although all “receivers” may
be charged with theft the general practice is to charge them with the more spe-
cific crime of receiving. Such a charge better acquaints X with the allegations
against him than a charge of theft only. According to the Criminal Procedure
Act theft is a competent verdict on a charge of receiving, and receiving is a com-
petent verdict on a charge of theft.179
4 Stolen property The property received must be stolen property. It is stolen
if it is obtained by theft, robbery, housebreaking with intent to steal and theft or
theft by false pretences.180 It is obvious that the crime can be committed only in
respect of property capable of being stolen, that is, movable corporeal property
in commercio.181 What is punishable under this crime is receiving stolen prop-
erty. If a person merely receives the proceeds of the sale of stolen property, he
does not commit the crime.182
5 Unlawfulness The receiving must be unlawful. If the receiver receives the
property with the consent of the owner or with the intention of returning it to
the owner or handing it over to the police, he does not commit the crime.183 In
Sawitz184 the police recovered the stolen property and handed it to the thief with
the request that he give it to X, so that the police could trap X in the act of

________________________

173 Inst 4 1 4 in fine; D 47 2 37; D 47 2 48 1.

174 Van Leeuwen RHR 4 38 12; Huber HR 6 5 19 34; Voet 47 16 2–4; Damhouder 107.
175 Moorman 3 4; Matthaeus 47 10 1.
176 Ex parte Minister of Justice: in re R v Maserow 1942 AD 164 169, 170; Karolia 1956 3
SA 569 (T) 571G–H; Arbee 1956 4 SA 438 (A) 441.
177 Ex parte Minister of Justice: in re R v Maserow supra; Joffe 1925 TPD 86; Arbee supra
441, 445; Correia 1958 1 SA 533 (A) 544A; Naran 1963 1 SA 652 (A) 656H; Bolus
1966 4 SA 575 (A) 580A; Sepiri 1979 2 SA 1168 (NC).
178 Supra XVIII A 16.
179 S 265, 264(1).
180 Vilakazi 1959 4 SA 700 (N) 701–702 (as to theft by false pretences).
181 Supra XVIII A 8.
182 Augustine 1986 3 SA 294 (C).
183 Ex parte Minister of Justice: in re R v Maserow supra 170.
184 1962 3 SA 687 (T). Cf also Maserow supra 173.
514 CRIMINAL LAW

“receiving”. This was done, and X was convicted of receiving. His defence that
the police consented to the receiving was rejected.
6 Receiving the property The crime does not consist in being in possession
of stolen goods but in receiving such goods.185 The concept of “receiving” pre-
supposes an act of taking into possession. Receiving can take place in any of
the recognised ways in which movable property can be delivered, including con-
structive modes of delivery.186 Mere negotiation between the thief and X, even
including a physical inspection of the goods by X, is not sufficient to render the
latter guilty of receiving.187 The possession gained by the receiver need not
necessarily amount to juridical possession in the sense that he intends to keep
the property as his own (possessio civilis); the crime is committed even where
he keeps the property only temporarily for another (possessio naturalis).188
7 Culpability The culpability requirement of the crime comprises, firstly,
knowledge by X that he is receiving the goods into his possession; this implies
an awareness on his part that he has the custody and control over the prop-
erty,189 and, secondly, an appreciation of the fact that the goods are stolen.190
Dolus eventualis suffices, that is, it is sufficient that X was aware of the possi-
bility that the property might be stolen, and despite this decided to receive it.191
It is submitted that it is this principle which the courts apply in stating that the
mental element is satisfied where X has a strong suspicion that the goods are
stolen, but he wilfully refrains from making inquiries in order to avoid confirm-
ation of his suspicions.192
At the moment when he receives the goods the receiver must know that they
are stolen.193 If he discovers this only subsequently and then appropriates the
goods (eg by selling or consuming them) he will be guilty of an independent
theft.194 Although the point has not yet been decided by the courts, it is submit-
ted that the receiver, like the thief, must have the intention to deprive the owner
of the benefits of his ownership permanently, more particularly because the
crime of receiving is equated by the courts with that of theft.195

________________________

185 Retief 1904 TS 63 64; Chicani 1921 EDL 123.

186 Saffy 1944 AD 391 420; Jeremiah 1965 4 SA 205 (R) 206–207.
187 Croucamp 1949 1 SA 377 (A). Cf also Singh 1960 3 SA 489 (E).
188 Von Elling 1945 AD 234 251.
189 Van der Bank 1941 TPD 307 309–310.
190 Matthaeus 47 10 1; Voet 47 16 3; Huber HR 6 5 19; Patz 1946 AD 845 856.
191 Sipendu 1932 EDL 312 319; Patz supra 857.
192 Patz supra 858; Markins Motors (Pty) Ltd 1959 3 SA 508 (A) 516. On the other hand,
if he had no suspicion or did not foresee the possibility of the goods being stolen, even
though a reasonable person would have, the requirement of intention is not satisfied.
Negligence cannot replace the intention required. See Nossel 1937 AD 1 8–9; Patz supra
856–857.
193 Van der Bank supra 309; Patz supra 856.
194 Naidoo 1949 4 SA 858 (A) 862; Bolus 1966 4 SA 575 (A) 578G.
195 In Nkwana 1953 2 SA 190 (T) it was held that animus furandi (the intention to steal) is
necessarily implied in an allegation of “receiving”.
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 515

E INABILITY TO GIVE ACCOUNT OF POSSESSION OF

GOODS SUSPECTED OF BEING STOLEN
(CONTRAVENTION OF SECTION 36 OF ACT 62 OF 1955)

1 Definition Section 36 of the General Law Amendment Act 62 of 1955

provides as follows:
“Failure to give a satisfactory account of possession of goods—Any per-
son who is found in possession of any goods, other than stock or produce
as defined in section thirteen of the Stock Theft Act, 1923 (Act No. 26 of
1923), in regard to which there is reasonable suspicion that they have been
stolen and is unable to give a satisfactory account of such possession, shall
be guilty of an offence and liable on conviction to the penalties which may
be imposed on a conviction of theft.”

2 Reason for crime’s existence In practice it is often very difficult for the
prosecution to prove all the requirements for the common-law crime of receiv-
ing stolen property, knowing it to be stolen. Firstly, it is often very difficult to
prove that a person in whose possession stolen property was found knew that it
was stolen. Secondly, the identification of the owner or person entitled to the
property is one of the most important prerequisites for a successful prosecution
for theft. If the state cannot identify the person from whom the property was
stolen, it is impossible to prove that the property was taken from the owner or
possessor without his consent. In order to further combat theft, the legislature
created two crimes in sections 36 and 37 of the General Law Amendment Act
62 of 1955 which punish the possession and receiving, respectively, of stolen
goods or goods suspected to be stolen. The crime created in section 36 is first
considered.196
Section 36 applies if it is not possible for the prosecution to prove that the
goods are stolen.197 If it is possible for the prosecution to prove this, X ought to
be charged with the common-law crime of receiving stolen property, or with the
statutory crime created in section 37 of Act 62 of 1955, which will be discussed
below. Because of the difficulties the state may have in proving the commission
of the common-law crime of receiving stolen property, convictions for contra-
vening section 36 are in practice more common than convictions for committing
the common-law crime.
3 Elements of the crime If one ignores the reference in section 36 to the
Stock Theft Act, the elements of the crime created in the section can be described
as follows: (a) the “goods”; (b) X must be found in possession; (c) there must
be a reasonable suspicion that the goods have been stolen, and (d ) X must be
unable to give a satisfactory explanation of the possession.
________________________

196 The section is identical with s 2 of the Stock Theft Act 57 of 1959 (previously Act 26 of
1923), except that the Stock Theft Act applies only to stock or produce as defined in that
Act, whereas s 36 applies to other goods. The interpretation by the courts of the corres-
ponding provision in the Stock Theft Act may also be applied to the interpretation of
s 36, since according to the Appeal Court in Ismail 1958 1 SA 206 (A) 211 the legis-
lature intended that s 36 be interpreted in the same way as the corresponding provision
in the Stock Theft Act.
197 Cf Sepiri 1979 2 SA 1168 (NC) 1173D–E.
516 CRIMINAL LAW

4 Definition of crime constitutional In Osman v Attorney-General, Trans-

vaal 198 the Constitutional Court held that the provisions of section 36 are not
incompatible with the Constitution. The court held that the section does not
violate any of the following rights: the right to remain silent, the right not to be
compelled to make any confession or admission, and the right to be presumed
innocent.
The court held that section 36 neither compelled X to do anything, nor con-
stituted pressure being applied on him to make a statement. He had a choice
whether or not to provide an explanation for the possession of the goods. X
retained the right to furnish an explanation at the trial if no explanation had
previously been given. It is the inability and not the failure or unwillingness to
give a satisfactory account of possession that constituted the offence created in
the section. The inability to give a satisfactory account of possession is an elem-
ent of the offence, and the burden of proving this element rests on the State.
The consequences of a failure by X to give evidence depended on the strength
of the state case. If the prosecution failed to discharge its onus, X was entitled
to be acquitted. If the case was strong enough to warrant a conviction in the
absence of any countervailing evidence by or on behalf of X, X could not be
heard to say that a conviction in such circumstances infringes upon his right to
silence.
5 The “goods” The crime can be committed only in respect of property
capable of being stolen.199 Although this is not expressly stated in the Act, it is
clear from the fact that the whole purpose of section 36 is to combat theft. How-
ever, the courts have held200 that it could never have been the intention of the
legislature that the section should apply to unidentifiable money in cash. Other-
wise sellers of goods and commercial banks would carry far too heavy a burden
and the flow of money would be seriously hampered. It is, of course, an entirely
different matter if the money is identifiable, as where a money note is marked,
or where, as in Mohapie,201 X was found in possession of a (stolen) American
hundred dollar note.
6 X must be found in possession The crime is not committed if goods sus-
pected of having been stolen are possessed. It is committed if a person is found
in possession of such goods. Section 36 is a criminal provision, and therefore
words or expressions in it that may have more than one meaning must be in-
terpreted restrictively; in other words, that interpretation which favours the
accused should be adopted.202 This is the case when the words “who is found in
possession” are interpreted: X must have personal and direct control over he
goods.203 It is not sufficient that he exercises control through an agent or a
subordinate: it will then be the latter person who “is found in possession”.204
________________________

198 1998 2 SACR 493 (CC).

199 Monyane 1960 3 SA 20 (T) 23A.
200 Monyane supra 23; Boshoff 1962 3 SA 175 (N); Mohapie 1969 4 SA 447 (C).
201 Supra.
202 Ismail 1958 1 SA 206 (A) 211; Boshoff supra 177.
203 Nader 1963 1 SA 843 (O) 845; Essack 1963 1 SA 922 (T) 924.
204 Tsotitsie 1953 1 SA 239 (T) 240D–E; Langa 1998 1 SACR 21 (T) 26a–d.
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 517

X must furthermore be in possession at the moment that the goods are found
by the police. It is not sufficient that he possessed them previously, or that he
merely falsely alleged that he possessed them.205
On the other hand it is not necessary to prove that X possessed the goods
animo domini (with the intention to possess them as an owner, that is, to keep
and use them for himself ). It is sufficient that X possessed the goods on behalf
of or in the interest of somebody else, as where, although he had direct physical
control over the goods, he merely looked after them on behalf of somebody
else. What is required is possessio naturalis, not possessio civilis.206 A person
cannot possess something if he is unaware that he possesses it (that means, if he
is unaware that he is exercising control over it). Neither, it is submitted, can one
possess something without one knowing what it is that one possesses (or what it
is over which one is exercising control).207
7 Reasonable suspicion that the goods have been stolen There must be a
reasonable suspicion that the goods have been stolen. The reasonable suspicion
must arise at virtually the same moment that the goods are found in X’s posses-
sion.208 If the suspicion existed before the goods were found, it must still exist
at the moment that the goods are found.209
The suspicion must be a reasonable one. The test used to determine whether
it is reasonable is objective: would a reasonable person in the position of the
policeman at the moment the goods were found also have suspected that they
were stolen?210 It is not enough that a policeman simply states in court that he
had a suspicion (or even a “reasonable suspicion”) that the goods were stolen.
He must also set out the grounds on which he based the suspicion, and the court
must determine independently whether the suspicion was reasonable.211
The grounds or facts on which the suspicion rests must be true and correct. If
it appears that they are wrong, the suspicion cannot be correct or reasonable.212
The fact that X, when asked where he obtained the property or who the owner
thereof was, gave a spurious explanation for his possession of the goods may
well be relevant in deciding whether there was a reasonable suspicion.213
________________________

205 Hassen 1956 4 SA 41 (N) 43.

206 Tsotitsie supra 240.
207 Cf the similar interpretation by the Appellate Division in Jacobs 1989 1 SA 652 (A)
659D–H of the words “found in possession” in s 10(1)(a) of Act 41 of 1971 (which dealt
with the crime of dealing in drugs).
208 Reddy 1962 2 SA 343 (N); Khumalo 1964 1 SA 498 (N) 499; Zuma 1992 2 SACR 488
(N) 491e; Mbebe 2004 2 SACR 537 (Ck) 541a–b.
209 Naidoo 1970 1 SA 358 (A).
210 Hunt 1957 2 SA 465 (N) 470; Khumalo supra 500A; Mohapie supra 447–448.
211 Essack supra 924; Khumalo supra 500; Makhati 1997 2 SACR 524 (O) 528f–g. How-
ever, the failure of the policeman or finder to state that he had a suspicion that the goods
were stolen, does not necessarily mean that X cannot be convicted: his suspicion can be
inferred from the circumstances – Zuma 1992 2 SACR 488 (N).
212 Hunt supra 470.
213 Shakane 1998 2 SACR 218 (SCA). This decision may be irreconcilable with that in Du
Preez 1998 2 SACR 133 (C) (as well as other decisions relied on by the court in the
latter case), in which it was decided that X’s subsequent explanation or reaction is not
relevant in determining whether there was a reasonable suspicion, for the merits of the
explanation become relevant only after it has been established that there was a reasonable
[continued]
518 CRIMINAL LAW

The grounds for the suspicion must also exist at the moment that the goods
are found.214 Whether the suspicion that the goods have been stolen is reason-
able depends upon the facts of each case. Factors which may be of particular
importance in this respect include the nature and quantity of the goods, the
place where they were found, whether they were still new, X’s status and finan-
cial standing, and X’s reaction when the goods were found in his possession.
Each case must be judged on its own merits.215
8 Inability to give satisfactory account Only if the previous requirements
have been complied with is it necessary to examine whether X was unable to
give a satisfactory account of his possession.216 Whereas the reasonable sus-
picion that the goods have been stolen must exist at virtually the same moment
that the goods are found, it is not required that X’s inability to give a satisfacto-
ry account should be restricted to the time when the goods were found.217 As
far as this requirement is concerned the courts follow a generous interpretation
of the section by allowing X to give an account of his possession at any time up
to and including his trial.218 It follows that the crime is completed only at the
moment the trial court finds that he was unable to give a satisfactory account of
his possession.
X’s account or explanation is “satisfactory” if (a) it is reasonably possible
and (b) shows that he bona fide believed that his possession was innocent with
reference to the purposes of the act, namely the prevention of theft.219 This
means that X must state where he obtained the goods, and it must be clear from
his statement that his possession was innocent in the sense that either the goods
had not been stolen or that X honestly believed that it was not stolen or that he
was entitled to possess it.
It has sometimes been said that the account must not only be bona fide (in
other words honest), but that it must also be reasonable; this would mean that a
reasonable person in X’s position should also have believed that his possession
was bona fide and innocent.220 It is submitted that this is wrong. The contrary
view, held to be correct in Bloem221 and Aube222 is to be preferred, namely that
________________________

suspicion. Perhaps Shakane and Du Preez are not irreconcilable if one considers the
different circumstances and types of articles involved in each case, namely expensive
electronic equipment possessed in highly suspicious circumstances (in Shakane) and an
old window frame carried by X in not such suspicious circumstances (in Du Preez).
214 Khumalo 499–500, 505H. There is, however, a qualification to this rule, viz “that he
[the policeman] may form the suspicion, perhaps not reasonably, but be confirmed in it
by the facts he ascertains thereafter; those facts are to be taken into consideration in
judging the reasonableness of the suspicion provided the person accused was still in
possession” – Khumalo supra 505H. A similar view was held in Kane 1963 3 SA 404
(T) 406.
215 Rubinstein 1964 3 SA 480 (A).
216 Khumalo 1964 1 SA 498 (N) 505F.
217 Ismail 1958 1 SA 206 (A) 212D–E.
218 Armugan 1956 4 SA 43 (N); Osman v Attorney-General of Transvaal 1998 1 SACR 28
(T) 30e–f.
219 Nader 1963 1 SA 843 (O) 848; Mojaki 1993 1 SACR 491 (O); Aube 2007 1 SACR 655
(W) 657–658.
220 Nader supra 849C.
221 1993 PH H16 (NC).
222 2007 1 SACR 655 (W) 657–658.
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 519

the test to be applied to determine whether X has given a satisfactory explana-

tion is subjective. In other words, it does not matter whether X’s belief is
unreasonable. Such a view accords with not only the restrictive interpretation of
the section which the courts say is required but also with the subjective test for
awareness of unlawfulness, which is a cornerstone of the general principles of
criminal law. There is nothing in the wording of the section which suggests that
the legislature did not want the courts to apply this subjective test. The crime
created in the section is one of dishonesty and not one of negligence.223
If the state has proved the other requirements for the crime but X refuses to
give an account of his possession, it would be reasonable to infer that he is
unable to give such account, and he can then be convicted.224 If, at the time that
the goods are found X gives an account of his possession which is materially at
variance with the account given by him in court, a court may infer that he has
not given a satisfactory account of his possession.225
In highly exceptional cases a court may accept that even though X gave no
account this does not mean that he is unable to give a satisfactory account: this
is where the court is convinced that because of personal defects such as dull-
ness, stupidity, feeble-mindedness or low intelligence X did not know what was
expected of him while there may be a reasonable possibility that his possession
was in fact innocent.226 It is unlikely that a court will accept an account offered
by somebody other than X as satisfactory,227 unless it appears from the circum-
stances of the case that the other person’s account is in fact that of X, which he
confirms.

F RECEIVING STOLEN PROPERTY

WITHOUT REASONABLE CAUSE
(CONTRAVENTION OF SECTION 37 OF ACT 62 OF 1955)

1 Definition Section 37(1) of the General Law Amendment Act 62 of

1955 provides as follows:
“(a) Any person who in any manner, otherwise than at a public sale,
acquires or receives into his or her possession from any other person stolen
goods, other than stock or produce as defined in section 13 of the Stock
Theft Act, 1959, without having reasonable cause for believing at the time
of such acquisition or receipt that such goods are the property of the person
from whom he or she receives them or that such person has been duly
authorized by the owner thereof to deal with or to dispose of them, shall be
guilty of an offence and liable on conviction to the penalties which may be

continued
________________________

223 Aube 2007 1 SACR 655 (W) 657h–i.

224 Zulu 1951 3 SA 44 (N) 47F; Khumalo supra 505G–H.
225 Khumalo supra 501F.
226 Khumalo supra 501E; Osman v Attorney-General of Transvaal 1998 1 SACR 28 (T)
31h–j.
227 See, however, Balitane 1956 3 SA 634 (E), a case under the Stock Theft Act, in which
it was accepted that the account may come from someone other than X.
520 CRIMINAL LAW

imposed on a conviction of receiving stolen property knowing it to have

been stolen except in so far as the imposition of any such penalty may be
compulsory.
(b) In the absence of evidence to the contrary which raises a reasonable
doubt, proof of such possession shall be sufficient evidence of the absence
of reasonable cause.”

2 Constitutionality of section 37(1) The provisions of section 37(1) as set

out above reflect the slight but significant change in the wording of the sub-
section brought about by the amendment of the section in 2000.228 This amend-
ment in turn flows directly from the judgment of the Constitutional Court in
Manamela.229 In this case the Constitutional Court considered the constitution-
ality of the original wording of the section. The court held, firstly, that the sub-
section infringed upon the right to remain silent enshrined in the Constitution,
but that this infringement was justifiable in terms of the limitation clause in the
Constitution. The reason why it was justifiable is that in most cases the state
has no information on the circumstances in which X acquired the stolen goods
The court held, secondly, that the creation of a reverse onus in the original
wording of the section (which provided that the onus was on X to prove that he
had reasonable cause for believing that the goods were not stolen) infringed
upon the right to remain silent, and that this infringement could not be justified
by the limitation clause.
However, the majority decision did not go so far as to declare the whole sec-
tion 37(1) unconstitutional. The state and society had a vital interest in combat-
ting the evil of the unlawful receipt of stolen property. The court made use of
its powers to read words into the legislation so as to replace the invalid reverse
onus. The words deleted from the subsection and the new words inserted into it
were shortly afterward followed by legislation which precisely endorsed the
changes proposed by the Constitutional Court.
3 Evidential presumption The effect of the abovementioned “reading in” of
words into the subsection is that the Constitutional Court has created an eviden-
tial presumption. A burden is placed upon possessors of stolen property to create
a reasonable doubt in the mind of the court as to whether they had reasonable
cause to believe that the person who disposed of the property was entitled to do
so. If X does not create such a reasonable doubt, the court will assume that he
did not have reasonable cause. X is therefore required to furnish evidence as to
the reasonableness of his belief.
4 Discussion of subsection The word “possession” in the section must not be
interpreted narrowly and must therefore not be limited to possessio civilis – that
is, possession in order to keep the property for oneself. It bears the wide mean-
ing of possessio naturalis, which means that its meaning is wide enough to
incorporate possession on behalf of somebody else.230 Thus, somebody who
________________________

228 By s 2 of the Judicial Matters Amendment Act 62 of 2000.

229 2000 1 SACR 414 (CC).
230 Moller 1990 3 SA 876 (A). On the concept of possession in criminal law generally, see
supra II C.
 CRIMES RELATING TO APPROPRIATION OF PROPERTY 521

receives property in order merely to look after it on behalf of somebody else,

contravenes the section.
The person who acquired or received the goods must have reasonable grounds
for believing what is set out in the section. It is not sufficient for him merely to
have an honest bona fide belief that he acquired the goods lawfully, for the test
is not subjective but objective: this means that a reasonable person in the same
circumstances must also have believed that the goods were obtained lawfully as
set out in the section.231 It is a pity that the legislature prescribed an objective
rather than a subjective test. The objective test does not accord with current
views relating to intention and mistake in criminal law. A person can accord-
ingly be convicted under the section even though he would not be guilty if he
were charged with common-law receiving, since in the latter crime the test for
determining the presence or absence of intention is subjective.
The reasonable cause for the belief mentioned in the section must be present
at the time when X acquires or receives the goods into his possession. If, at that
stage he has reasonable grounds for believing that the goods belong to the person
from whom he receives them, he does not contravene the section even though he
later becomes suspicious or comes to know of circumstances suggesting that
the goods have been stolen.232

________________________

231 Kaplin 1964 4 SA 355 (T) 358; Ghoor 1969 2 SA 555 (A); Mkhize 1980 4 SA 36 (N).
232 Mkhize 1980 4 SA 36 (N).
 CHAPTER
XIX

FRAUD AND RELATED CRIMES

A FRAUD

1 Definition Fraud is the unlawful and intentional making of a misrepre-

sentation which causes actual prejudice or which is potentially prejudicial
to another.1

2 Elements of the crime The elements of the crime are the following: (a) a
misrepresentation; (b) prejudice or potential prejudice; (c) unlawfulness and
(d ) intention.
3 Origin and character To understand why fraud covers such a wide field
in our law it is necessary to refer briefly to its origin in our common law.2 The
crime of fraud, as we know it today, is derived from two different Roman law
crimes, namely (a) stellionatus and (b) the crimina falsi. Stellionatus was the
criminal-law equivalent of the delict dolus, and developed from the actio de dolo
in private law.3 It involved an intentional misrepresentation resulting in harm,
or prejudice, to others. Crimina falsi was the collective term for a number of
crimes relating to falsification, almost all of which were derived from the lex
Cornelia de Falsis. These different forms of falsification were, however, never
unified into one generic crime. Examples of the crimina falsi are the falsifi-
cation of a will,4 of weights and measures5 and of evidence.6 In the crimina falsi
it was not required that somebody should necessarily have been prejudiced by
X’s conduct.7
________________________

1 A substantially similar definition of the crime was given or quoted with apparent approval
in Myeza 1985 4 SA 30 (T) 31–32; Ex parte Lebowa Development Corporation Ltd 1989
3 SA 71 (T) 101; Gardener 2011 1 SACR 570 (SCA) par 29.
2 On the position in Roman and Roman-Dutch law, see De Wet and Swanepoel 384 ff;
VerLoren van Themaat 148 ff; Frankfort Motors (Pty) Ltd 1946 OPD 255.
3 D 47 20 3 1; C 9 34.
4 D 48 10 2.
5 D 48 19 32 1.
6 D 22 5 16; D 48 10 1, 2. On the falsification of coins, see D 48 10 8 and 9.
7 De Wet and Swanepoel 385.

523
524 CRIMINAL LAW

Our Roman-Dutch writers did not differentiate clearly between stellionatus

and the crimina falsi.8 Since the beginning of this century the distinction be-
tween these two crimes has become blurred; the courts have combined them to
form a new crime known as fraud.9 In fact, fraud has sometimes even been refer-
red to as falsitas or “falsiteit”. The most important result of this merging has
been that fraud may now be committed even where there is no actual proprietary
prejudice: even non-proprietary or potential prejudice may be sufficient to result
in a conviction.
4 Misrepresentation The very first requirement for fraud is that there must be
a misrepresentation or, as it is sometimes expressed, “a perversion or distortion
of the truth”. This is the conduct requirement of the crime. By misrepresentation
is meant a deception by means of a falsehood. X must, in other words, represent
to Y that a fact or set of facts exists which in truth does not exist.
(a) Form that misrepresentation may take Although the misrepresentation
will generally take the form of spoken or written words, conduct other than
writing or speech may also sometimes be sufficient, such as a nod of the head
signifying consent.10
(b) Express or implied The misrepresentation may be either express or im-
plicit. If X unlawfully comes into possession of Y’s credit card and uses the
card to buy herself articles in a shop by falsely writing Y’s signature on the pay
slip, she commits fraud.11 She misrepresents to the shop or shop assistant that
she is the owner of the credit card, whereas she in fact is not.
In the ordinary course of events somebody who buys goods on credit impli-
citly represents that at the time of purchase she is willing to pay for them or
intends to pay for them in the future, and that she believes she will be able to do
so. If, at the time of purchase she in fact has no such intention or belief, she mis-
represents the state of her mind.12 It is submitted that the position ought to be
the same if X books in at an hotel and later disappears without paying her
account: in the normal course of events somebody in X’s position represents
that she can pay and intends to pay.13
Every student who, when writing an examination, unlawfully uses notes con-
cealed in her clothing or scribbled on her body, misrepresents to the examination

________________________

8 It seems that Matthaeus 48 7 1, 7; Voet 48 10 4, and Van der Linden 2 6 4 did require
actual prejudice and in this way differentiated between fraud and the crimina falsi, but
writers such as Damhouder 109 ff, Carpzovius 2 93 and Perezius 9 22 2 virtually equated
the two crimes.
9 The most important of the many decisions in this respect are Moolchund (1902) 23 NLR
76; Jolosa 1903 TS 694; Dyonta 1935 AD 52; Kruse 1946 AD 524 and Heyne 1956 3 SA
604 (A).
10 Brande 1979 3 SA 371 (D); MacDonald 1982 3 SA 220 (A) 239H; Mdantile 2011 2
SACR 142 (FB) par 29.
11 Salcedo 2003 1 SACR 324 (SCA).
12 Deetlefs 1953 1 SA 418 (A); Heyne supra 619C; Latib 1973 3 SA 982 (A) 984–985;
Moodie 1983 1 SA 1161 (C).
13 Coertzen 1929 SWA 20 21, but contrast Hochfelder 1947 3 SA 580 (C); Hattingh 1959 2
PH H355 (O) and Hutson 1964 1 PH H16 (O). It is submitted that the last three decisions
were incorrectly decided.
 FRAUD AND RELATED CRIMES 525

authorities that what she is writing is knowledge she has acquired by studying,
whereas it is in fact not such knowledge.
(c) Commissio or omissio The misrepresentation may be made by either a
commissio (positive act) or an omission. A mere omission by X to disclose a
fact may, in the eyes of the law, amount to the making of a misrepresentation if
there is a legal duty on X to disclose the fact.14
A legal duty may, firstly, be created by legislation. An omission to comply
with the provisions of certain legislation may amount to a misrepresentation and
fraud.15 Failure to comply with the provisions of certain legislation, for example,
to disclose certain facts, may amount to a misrepresentation even though the
legislation concerned does not stipulate that non-compliance with it amounts to
a crime.16
A legal duty may, secondly, arise from considerations other than the terms of a
statute, such as where a court is of the opinion that X should have acted positively
to remove a misconception which would, in the natural course of events, have
existed in Y’s mind. The following is an example of such a case: In Larkins17 X
informed Y on the 24th of the month that his (X’s) salary for the month would
be deposited in his banking account on the 30th. On the strength of this, Y lent
X money. However, X failed to disclose to Y that prior to the 24th, he had ceded
his entire salary for the month to somebody else. Because of this omission he
was convicted of fraud.
In Harper18 X was convicted of fraud in the following circumstances: in order
to induce Y to lend him money for a year, he expressed to Y his honest belief
that he had adequate security for a loan. Y accordingly lent X the money. Sub-
sequently X discovered that his security was no longer safe. Y still thought that
it was, and X knew that Y was under this impression. X nevertheless allowed a
year to pass without informing Y of the changed circumstances. At the end of
the year he went insolvent and Y could not recover his money. The court stated
that X was under a legal duty to inform Y of the changed circumstances relating
to the security. His intentional omission to do this constituted a misrepresentation.

________________________

14 Mbokazi 1998 1 SACR 438 (N) 445f–g.

15 Heller (2) 1964 1 SA 524 (W) 537–538: Shaban 1965 4 SA 646 (W) 649. In Heller
Trollip J said at 537 that before a non-disclosure of an existing fact could amount to fraud
“the breach of duty to disclose that fact must have been wilfully committed by the accused
(a) in such circumstances as to equate the non-disclosure with a representation of the non-
existence of that fact . . . (b) with knowledge of its falsity . . . (c) with intent to deceive,
and (d ) resulting in actual or potential prejudice to the representee”. As far as point (c) is
concerned, it would perhaps have been better to require “an intent to defraud” (cf infra
par 10). The dictum of Trollip J was followed in Harper 1981 2 SA 638 (D) 677–678;
African Bank of SA Ltd 1990 2 SACR 585 (W) 646–647; Gardener 2011 1 SACR 570
(SCA) par 30; Malan 2013 2 SACR 655 (WCC) 659-660. See also Western Areas Ltd
2004 1 SACR 429 (W), in which it was held that an omission to reveal facts on the
grounds of the provisions of the Companies Act as well as the “listing requirements” of
the Johannesburg Stock Exchange may in certain circumstances amount to a misrepresen-
tation and fraud.
16 Western Areas Ltd 2004 1 SACR 429 (W) 438; Yengeni 2006 1 SACR 405 (T) 421–222.
17 1934 AD 91. See also Judin 1969 4 SA 425 (A) 441–442.
18 1981 2 SA 638 (D).
526 CRIMINAL LAW

(d ) False promise about the future It has sometimes been said that a mis-
representation must refer to a present situation or to a past event, and that one
relating to the future, being the equivalent of a promise, is insufficient because
making a false promise cannot constitute fraud.19 This statement is, however,
misleading. If X makes a promise to do something in the future, she represents,
at the time of making it, that she intends to keep it. If, at the time of making the
promise she has no intention of keeping it, she misrepresents an existing state
of affairs, namely the state of her mind, in that she represents to the outside
world that she has a certain belief or intention which she in fact does not have.20
An important illustration of this rule in practice is the case of a person who gives
somebody a cheque when, at the time of delivery, she is not sure or does not
believe that she has or will have enough funds in her account to meet the amount
shown on the cheque, and she keeps quiet about her lack of funds in the account.
Such a person normally implicitly represents that she believes or is sure that the
cheque will be met on the due date, and, if the cheque is not met she may be
convicted of fraud.21
(e) Misrepresentation to a computer or machine It is possible for X to make
a misrepresentation leading to liability for fraud even if the misrepresentation is
not made to another person, but to a computer or a machine (such as a parking
metre).22 If X discovers Y’s “PIN” number and unlawfully utilises this
knowledge to transfer credit which is recorded to Y’s advantage in a bank to
her (X’s) own advantage, or if she succeeds in instructing or manipulating a
computer by some underhand method to transfer credit which is not due to her,
to her own account, she commits a misrepresentation. She falsely and impliedly
________________________

19 Larkins supra 92; Deetlefs 1953 1 SA 418 (A) 421; Feinberg 1956 1 SA 734 (O) 736B.
20 Myers 1948 1 SA 375 (A) 382; Deetlefs supra 421; Isaacs 1968 2 SA 187 (D) 191 (in
which the following statement from an English case was quoted with approval: “There
must be a misstatement of an existing fact: but the state of a man’s mind is as much a fact
as the state of his digestion”); Latib supra 984–985.
21 Strydom 1962 3 SA 982 (N); Burger 1969 4 SA 292 (SWA) 296; MacDonald 1982 3 SA
220 (A) 240A–C. For a case where X did have an honest belief that there would be enough
money in his account to meet the cheques, see Van Niekerk 1981 3 SA 787 (T) 793. In
Rautenbach 1990 2 SACR 195 (N), however, it was held that it was not possible to con-
strue a tacit misrepresentation by the person who issued a cheque that he believed that the
cheque would be paid by the bank (although at the time of issuing the cheque he knew
that there were no funds in the cheque account), since the bank guaranteed payment of
cheques to an amount of R200, and the amount of the cheque did not exceed R200. The
court held that the person to whom the cheque had been presented could possibly have
relied on the advertised guarantee and not on any representation by X. This argument
cannot be supported. X had impliedly represented that he had authority from the bank and
that he was entitled to write out the cheque, or at least that he believed that he was en-
titled to write out the cheque, whereas he well knew that he was not entitled to do so. In
this case the bank suffered the real or potential prejudice. Furthermore, it is, it is submitted,
irrelevant whether Y accepted the cheque as a result of X’s misrepresentation or whether
he did so as a result of the bank guarantee, since a causal connection between the mis-
representation and the prejudice is not required in the case of fraud (infra par 8). It is suf-
ficient that the misrepresentation be potentially prejudicial – which, it is submitted, was
indeed the case here.
22 As in Myeza 1985 4 SA 30 (T). On fraud committed by the use of credit cards or com-
puters, see Carstens and Trigardt 1987 SACC 132; Botha 1988 SACJ 377; 1990 SACJ 231;
Ebersöhn 2004 THRHR 193.
 FRAUD AND RELATED CRIMES 527

represents to the bank’s electronic system that it is Y who is withdrawing the

money or who has at least consented to the withdrawal of the money, whereas
she (X) knows that it is actually she (X) who is withdrawing the money and that
Y has in fact not given her any permission to withdraw the money.23 (X may
also be charged with theft of the money if there is clear evidence that she had
committed an act of appropriation by excluding Y from the control of her funds
and by herself obtaining the control of the funds with the intention of appro-
priating it.)24
If X steals Y’s credit card and then buys goods with the stolen card, she
firstly commits theft of the credit card, and secondly she commits fraud every
time she uses the card to buy goods, because she then on each occasion makes a
misrepresentation that it is her card while knowing that it is in fact somebody
else’s card.25
5 Prejudice – general The following general requirement for fraud, namely
the requirement that there must be real or potential prejudice, is next considered.
The mere telling of a lie is not punishable as fraud. The crime is committed only
if the telling of the lie brings about some form of harm to another. For the pur-
poses of this crime the harm is referred to as prejudice.
In many instances of fraud the person to whom the false representation is
made is in fact prejudiced. For example, X falsely represents to Y that the
painting she is selling to Y is an original painting by a famous painter and
therefore worth a great amount of money, whereas it is in fact merely a copy of
the original and worth very little (if any) money. Actual prejudice is, however,
not required; mere potential prejudice is sufficient to warrant a conviction. Nor
is it required that the prejudice be of a patrimonial nature. These last two prep-
ositions, which incorporate important principles, will now be examined in more
detail.
6 Prejudice may be either actual or potential Even if the prosecution has
not proved that the misrepresentation resulted in actual prejudice, X may still be
convicted if it is proved that her misrepresentation was potentially prejudicial,
in other words that the misrepresentation involved some risk of prejudice.
Assume X has insured with an insurance company all articles belonging to
her, against theft. She subsequently claims an amount of money from the insur-
ance company on the ground that certain articles belonging to her have been
stolen. Her allegation that the articles have been stolen, is, however, false. If the
insurance company pays her the money she claims, the company would have
suffered actual prejudice. Assume, however, that after she put in her claim, the
company discovers that the articles concerned were in fact not stolen and that

________________________

23 Mbokazi 1998 2 All SA 78 (N).

24 Cf the discussion of theft supra XVIII A 15 (b). Ebersöhn 2004 THRHR 198 states:
“[W]hen a hacker transfers money from A’s account to his account or to someone else’s
account, he can be charged with fraud (in that he makes a misrepresentation to the bank’s
system administrator with the intent to defraud the bank) or with theft (in that he stole A’s
‘money’ or more correctly stated: He diminished A’s personal rights against the bank).”
25 Nonkonyana 2008 2 SACR 271 (E).
528 CRIMINAL LAW

X’s claim was therefore false. It accordingly refuses to pay X the amount of her
claim. Can X still be convicted of fraud? The answer is “yes”, because although
the company has not suffered any actual prejudice, X’s misrepresentation
resulted in potential prejudice.
What is the meaning of “potential prejudice”?
(1) Potential prejudice means that the misrepresentation, looked at objectively,
involved some risk of prejudice, or that it was likely to prejudice.26
(2) “Likely to prejudice” does not mean that there should be a probability of
prejudice, but only that there should be a possibility of prejudice. This
means that what is required is that prejudice can be, not will be, caused.27
(3) The possibility of prejudice must be a reasonable possibility. This means
that remote or fanciful possibilities should not be considered.28 The test is
objective in the sense that it must be determined whether a reasonable per-
son could, in the normal course of events, have suffered prejudice.29 If the
misrepresentation is so far-fetched that no reasonable person would believe
it, there is no potential prejudice.
(4) The prejudice need not necessarily be suffered by the representee (Y). Preju-
dice to a third party, or even to the state or the community in general, is
sufficient.30
________________________

26 Dyonta 1935 AD 52 55; Heyne 1956 3 SA 604 (A) 622; Kruger 1961 4 SA 816 (A) 827–
828.
27 Seabe 1927 AD 28 32, 35; Heyne supra; This was also the test posited in Bester 1961 2 SA
52 (F) 54 and Kruger 1961 4 SA 816 (A) 828–829, 832–833. See also Chetty 1972 4 SA
324 (N) 328; Harper 1981 2 SA 638 (D) 654H.
28 Seabe supra 32, 34; Heyne supra 622; Kruger supra 832. For cases in which there might
have been some discomfort for Y which nevertheless did not amount to prejudice, and
where the courts accordingly refused to convict for fraud, see Ellis 1969 2 SA 622 (N);
Chetty 1972 4 SA 324 (N); Francis 1981 1 SA 230 (ZA). The courts have held that the
issuing of a worthless cheque in payment of an existing debt does not amount to fraud,
since there is no prejudice. See Ellis supra; Van Aswegen 1992 1 SACR 487 (O) 490b–c;
Calitz 1992 2 SACR 66 (O); Labuschagne 1997 2 SACR 6 (NC). It is submitted that this
view of the law is incorrect, since in this type of case there is at least potential prejudice.
The person to whom the cheque is given (Y) may, on the strength of X’s conduct, make
use of her overdraft facilities at her bank; her computation of the amount of credit she has
in the bank may be wrong; or she may have to go to the bank unnecessarily to deposit the
cheque or try to cash the worthless cheque. What is more, this view of the law by the
courts is irreconcilable with the rule the courts themselves apply that the mere creation of
an objective risk of prejudice already constitutes a form of prejudice (Kruger supra 827–
828). Alternatively, this type of conduct could at least be punishable as attempted fraud.
Cf Ostilly (1) 1977 4 SA 699 (D) 714–716; Rosenthal 1980 1 SA 65 (A) 87. For criticism
of this view of the courts, see Hunt-Milton 721–722; Snyman 1997 THRHR 691.
29 Seabe supra 32–34; Heyne supra 622; Kruger supra 828–829.
30 Frankfort Motors (Pty) Ltd 1946 OPD 255 259–260; Heyne supra 622; Minnaar 1981 3
SA 767 (D) 778–779; Myeza 1985 4 SA 30 (T) 32C. In Tshoba 1989 3 SA 393 (A) X was
arrested on a suspicion of being a terrorist. Shortly after his arrest, when asked by the
police to identify himself, he presented a false passport. The Appellate Division held that
this conduct did not amount to fraud, since there was no need to amplify the concept of
“potential prejudice to the police” to cover a case such as this one. It is difficult to recon-
cile this decision with the one in Heyne, in which the same court held that if a liquor
licence holder supplies false information about the sale of liquor he commits fraud, since
there is potential prejudice for the state which has the responsibility to enforce legislation
[continued]
 FRAUD AND RELATED CRIMES 529

(5) The fact that the party to whom the misrepresentation has been made (Y)
was not in fact misled by the misrepresentation is irrelevant. It is sufficient
for a conviction that the misrepresentation had the potential of leading to
prejudice.31 X therefore commits fraud even if she makes the misrepresen-
tation to a police trap who knows very well that X’s statement is false.32 The
crime is committed the moment the misrepresentation is made. It follows
that it does not matter whether or not Y reacts to the misrepresentation, how
Y reacted to the misrepresentation, or whether X’s fraudulent scheme is
successful or not.33
(6) Whether there is potential prejudice must be determined according to the
facts which exist at the time the misrepresentation is made. Whether the
defrauded party would ultimately have suffered the prejudice anyway is
irrelevant.34
(7) If X obtains a loan from Y by misrepresenting to her the purpose for which
the loan is required, she commits fraud: as a result of the misrepresentation
Y is induced to exchange her existing right of ownership in her money for a
mere right to reclaim the money from X. Since a mere personal right to
claim as a creditor is a weaker right than the real right to property which
Y would have had as a possessor, she suffers prejudice and X therefore
commits fraud.35
In Myeza36 X was held to have committed fraud when he put an object other
than a coin into a parking meter, thus activating it. In this case X put the ring of
a beer-can lid into the parking meter. By so activating the meter he created the
false impression that he had put in a coin as required. In this way he intention-
ally distorted the truth, so that the persons responsible for enforcing the muni-
cipality’s by-laws were brought under the false impression that he had paid for
the parking in the prescribed manner. This resulted in at least potential preju-
dice to the municipality. It was held that X had committed fraud.
7 Non-proprietary prejudice sufficient Although in most cases of fraud
there is financial or proprietary prejudice (real or potential), the prejudice need
not necessarily be proprietary in character. Instances of conduct leading to such
non-proprietary prejudice are the following: (a) a liquor licensee’s making false
entries in sales registers regarding the sale of liquor – such conduct is prejudicial
________________________

about the control of liquor sales. The court’s attempt in Tshoba to distinguish Heyne’s
case is, with respect, not convincing. To show a false passport to the police or any other
government body is at least potentially prejudicial to the state. It is difficult to see how
the state’s interests in exercising control over who is inside the country’s borders or who
is entering the country, could in any way be less important than the state’s interest in
keeping control over the sale of liquor – an interest which was held by the same court in
Heine supra to be sufficiently important to be protected by the crime of fraud.
31 Dyonta 1935 AD 52; African Bank of SA Ltd 1990 2 SACR 585 (W) 647f–g; Campbell
1991 1 SACR 503 (Nm) 507; Mdantile 2011 2 SACR 142 (FB).
32 Swarts 1961 4 SA 589 (G).
33 Dyonta supra 55–56; Persotam 1938 AD 92 95; Kruger supra 828, 832–833; Isaacs
1968 2 SA 187 (D) 191.
34 Kruger 1961 4 SA 816 (A) 828, 832; Henkes 1941 AD 143 167.
35 Huijzers 1988 2 SA 503 (A), discussed by Botha 1989 SACJ 89.
36 1985 4 SA 30 (T) 32C, discussed by Botha 1986 SACC 72.
530 CRIMINAL LAW

to the state because the misrepresentations are calculated to weaken the state’s
control over the sale of liquor;37 (b) producing a forged driver’s licence to a pros-
ecutor when charged with a traffic offence;38 (c) writing an examination on behalf
of another person, thereby misrepresenting to the examiners the examination can-
didate’s identity;39 (d ) obtaining a privilege, exemption or permit to which the
person requesting it is not entitled but endeavours to obtain by way of fraudu-
lent misrepresentation;40 (e) impairing the dignity or reputation of another by
making false allegations against her (if sufficiently serious);41 ( f ) creating the
risk of having to vindicate one’s rights by means of civil proceedings or of
incurring a criminal prosecution;42 (g) even entering into an agreement which Y
would not have entered into if there had been no fraudulent misrepresentation.43
8 Requirement of causation superfluous A causal link between misrepresen-
tation and prejudice has sometimes been required,44 but because “prejudice” is
interpreted so widely this requirement of causation has become meaningless.
Fraud may be committed even though there is no causal link, provided there is
potential prejudice. As was pointed out above, X may be guilty of fraud even
though her misrepresentation was unsuccessful.
How irrelevant the requirement of causation is, is apparent from Kruse.45 In
this case X obtained two rings from Y on approval. As security he gave Y a
cheque which the bank refused to meet. It appeared, however, that Y would have
given X the rings even if no cheque had been given as security. The Appeal
Court held that the latter consideration afforded X no defence, because “if the
false representation is of such a nature as in the ordinary course of things, to be
likely to prejudice the complainant, the accused cannot successfully contend that
the crime of fraud is not established because the Crown has failed to prove that
the false representation induced the complainant to part with his property”. The
result is that fraud may be committed even where there is actual prejudice, though
it cannot be proved that this was caused by the misrepresentation; it is sufficient
if the misrepresentation is of such a nature that it is potentially prejudicial.46
9 Unlawfulness Compulsion or obeying of orders may possibly be grounds
of justification.47 As was pointed out above,48 the fact that Y knew that the
representation was false is no defence.

________________________

37 Heyne 1956 3 SA 604 (A) 623–625.

38 Jass 1965 3 SA 248 (E) 250; Pelser 1967 1 PH H102 (O).
39 John 1931 SALJ 83; Thabeta 1948 3 SA 218 (T) 222.
40 Macatlane 1927 TPD 708; Jolosa 1903 TS 694.
41 Heine supra 624; Kruger supra 814D–E; Ressel 1968 4 SA 224 (A) 232F.
42 Armstrong 1917 TPD 145 150; Gweshe 1964 1 SA 294 (R) 297.
43 Deale 1960 3 SA 846 (T). Cf also Moodie 1983 1 SA 1161 (C) 1163D–E.
44 Van Wyk 1969 1 SA 615 (C) 623B–C; Rautenbach 1990 2 SACR 195 (N).
45 1946 AD 524 533–534, followed in Judin 1969 4 SA 425 (A) 435.
46 Kruger supra 828, 830; Gweshe supra 297.
47 In Shepard 1967 4 SA 170 (W) 177–178 the court refused to regard the fact that X acted
unlawfully on the instructions of his employer as a defence on a charge of fraud.
48 Supra par 6.
 FRAUD AND RELATED CRIMES 531

10 Intention X must, firstly, be aware of the fact that the representation is

false.49 X can be said to be aware that her representation is false not only if she
knows that it is false but also if she has no honest belief in its truth, or if she
acts recklessly, careless as to whether it is true or false.50 She can even be said
to know that her representation is false if, although suspicious of their correct-
ness, she intentionally abstains from checking on sources of information with the
express purpose of avoiding any doubts about the facts which form the subject-
matter of the representation.51 All these rules applied in practice, it is submitted,
are merely applications of the rule that dolus eventualis suffices, in other words
that it is sufficient if X foresees the possibility that her representation may be
false but nevertheless decides to make it.52
There is a distinction between an intention to deceive and an intention to
defraud. The former means an intention to make somebody believe that some-
thing which is in fact false, is true. The latter means the intention to induce
somebody to embark on a course of action prejudicial to herself as a result of
the misrepresentation.53 The former is the intention relating to the misrepresen-
tation, and the latter is the intention relating to both the misrepresentation and
the prejudice.54 It is this latter intention which must be established in order to
convict somebody of fraud. The mere telling of lies which the teller thereof does
not believe the person to whom they are told will act upon is not fraud.55 The
intention to defraud includes the intention to deceive, but the latter does not
include the former.56
If the intention to defraud is present, X’s motive is immaterial.57 No intention
to acquire some advantage is required.58
11 Attempt Because potential prejudice is sufficient to constitute fraud the
view was long held that there can be no such thing as attempted fraud, since
even if a representation is not believed or acted upon potential prejudice is

________________________

49 Hepker 1973 1 SA 472 (W) 477E–F. Ex parte Lebowa Development Corporation Ltd
1989 3 SA 71 (T) 101–104. Cf also MacDonald 1982 3 SA 220 (A) 240.
50 Myers 1948 1 SA 375 (A) 382; Bougarde 1954 2 SA 5 (C) 7–9; Hepker 1973 1 SA 472
(W) 477E–F; Ex parte Lebowa Development Corporation Ltd 1989 3 SA 71 (T) 101–102.
51 Myers supra 382; Bougarde supra 7–8.
52 For a case expressly recognising dolus eventualis to be sufficient for a conviction of fraud,
as well as an analysis of this form of intention in cases of fraud, see Ex parte Lebowa De-
velopment Corporation Ltd 1989 3 SA 71 (T) 101–104. See also the recognition of dolus
eventualis as a sufficient form of intention for the purposes of fraud in African Bank of
SA Ltd 1990 2 SACR 585 (W) 646.
53 “To deceive is to induce a man to believe that a thing is true which is false . . . To defraud
is to deprive by deceit; it is by deceit to induce a man to act to his injury. More tersely it
may be put that to deceive is by falsehood to induce a state of mind, and to defraud is by
deceit to induce a course of action” – Re London and Globe Finance Corp Ltd (1903) 1
Ch 728 733, approved in Isaacs 1968 2 SA 187 (D) 191. See also Gardener 2011 1 SACR
570 (SCA) par 35.
54 Gardener 2011 1 SACR 570 (SCA) par 31-35.
55 Harvey 1956 1 SA 461 (T) 464G.
56 Isaacs supra 192; Bell 1963 2 SA 335 (N) 337.
57 Van Biljon 1965 3 SA 314 (T) 318.
58 Shepard 1967 4 SA 170 (W) 179D.
532 CRIMINAL LAW

nevertheless present and the fraud is therefore complete.59 Since the decision of
the Appeal Court in Heyne,60 however, it has been acknowledged that an attempt
to commit fraud is possible in cases where a misrepresentation is made but not
communicated to the representee, for example, because the letter in which it is
made is lost or intercepted in the post.61
Francis 62 is an example of one of the rare cases in which X was convicted of
attempted fraud. He buried some pieces of jewellery in a garden, then took out
an insurance policy to cover the jewellery against theft. Within minutes he
returned to the insurers, informing them that the jewellery had been stolen out
of his car. The insurers told him that he must first report the case to the police
and then fill in the prescribed claim form. Using a screwdriver he then forcibly
lifted the lock out of the door of his car to simulate a forced entry. Before he
could return to the offices of the insurance company the police discovered that
he had faked the loss of the jewellery. The court held that his report to the
insurance company could not have caused even potential prejudice to the com-
pany. His conduct nevertheless went beyond the stage of a mere preparation
and constituted an attempt to commit fraud.
12 Aspects of definition may be wide, but not unconstitutional The rule
that the prejudice need be neither actual nor patrimonial has been criticised as
rendering the meaning of the requirement of prejudice too vague.63 In Friedman
(1)64 the defence invited the court to find that this rule is, because of its vague-
ness, unconstitutional. However, the court rejected this argument, stating that
“[t]he present definition of fraud is wide, but that does not make it difficult,
much less impossible, to ascertain the type of conduct which falls within it”.65

B FORGERY AND UTTERING

1 Definition of forgery Forgery consists in unlawfully and intentionally

making a false document to the actual or potential prejudice of another.66

2 Elements of the crime The elements of the crime are the following: (a)
making a document (b) which is false (c) prejudice (d ) unlawfulness and (e)
intention, which includes the intention to defraud.
3 Character Forgery is merely a species of fraud.67 In forgery the misrepresen-
tation takes place by way of the falsification of a document. Apart from this, all
the requirements for the crime of fraud must be present, such as the intent to
defraud and actual or potential prejudice.

________________________

59 Dyonta 1935 AD 52 57; Moshesh 1948 1 SA 681 (O) 684, 692.

60 1956 3 SA 604 (A) 622.
61 Isaacs 1968 2 SA 187 (D) 188–191.
62 1981 1 SA 230 (ZA). For a similar case, see Chaitezvi 1992 2 SACR 456 (ZS).
63 De Wet and Swanepoel 388 ff.
64 1996 1 SACR 181 (W).
65 At 194b.
66 Muller 1953 2 SA 146 (T) 148A.
67 Hymans 1927 AD 35 37, 38; Dormehl 1966 1 PH H223 (A).
 FRAUD AND RELATED CRIMES 533

There is, however, one small point of difference between fraud and forgery:
whereas fraud is completed only when the misrepresentation has come to the
notice of the representee, forgery is completed the moment the document is
falsified.68 If the document is then brought to the attention of others a separate
crime is committed, namely uttering the document. Because the person who
falsifies the document is in most cases also the one who offers it to another, it
has become customary to charge that person with both forgery and uttering,
which are, nevertheless, two distinct crimes.69
4 The document It has never yet been necessary for the courts to define the
meaning of “document” for the purposes of the crime of forgery. In De Wet and
Swanepoel 70 it is contended that upon a proper interpretation of the common
law forgery can be committed only in respect of a limited class of documents,
namely documents embodying a legal transaction or which afford evidence of
such a transaction, or officially drawn-up documents. However, our courts,
influenced by English law and by the broader definition of “document” in sec-
tion 219 of the Native Territories Penal Code,71 interpret the term “document”
more broadly for the purposes of the crime.72 They have, for example, held that
forgery can be committed in respect of the following types of documents: a
testimonial,73 a written request to the military authorities for a pass,74 and a
certificate of competence to repair watches.75 Other examples of “documents”
for the purposes of this crime are: cheques,76 receipts,77 promissory notes,78
bonds,79 general dealers’ licences,80 and documents setting out educational
qualifications.81

________________________

68 Hymans supra 38.

69 Joubert 1961 4 SA 196 (O) 199–200; Van Niekerk 1980 1 SA 594 (O).
70 At 425.
71 Act 24 of 1886 (Cape). The s defines “document” for the purposes of forgery as “any
substance on which is impressed and described by means of letters, figures, or marks, any
matter which is intended to be or may be used in a court of justice, or otherwise, as evi-
dence of such matter”.
72 As far as is known, the narrow definition of “document” found in De Wet and Swanepoel
has never been adopted by the courts, and was only once referred to obiter in Banur In-
vestments (Pty) Ltd supra 770–771. Hunt-Milton 745 rejects it. In Joffe 1934 SWA 108
109 Van den Heever J referred to the accelerated development of the crimina falsi towards
the end of the Roman Republic, to “curb the machinations of individuals who fraudulently
tampered with, destroyed or perverted the authority of the written word”. Damhouder 110
regards the falsification inter alia of “handschriften” and “brieven” as a particular form of
falsitas. These terms are wide enough to include more documents than those mentioned
in De Wet and Swanepoel.
73 Dhlamini 1943 TPD 20; Leballo 1954 2 SA 657 (O).
74 Slater (1901) 18 SC 253.
75 Motete 1943 OPD 55.
76 Joffe 1934 SWA 108; Timol 1959 1 PH H47 (N).
77 Vilakazi 1933 TPD 198; De Beer 1940 TPD 268.
78 Sedat 1916 TPD 431.
79 Pepler 1927 OPD 197.
80 Kolia 1937 TPD 105.
81 Macatlane 1927 TPD 708.
534 CRIMINAL LAW

5 Falsification A document is not forged or falsified merely because it con-

tains untrue statements.82 A lie does not become a forgery merely because it is
reduced to writing.83 A document is false when it purports to be something
other than it is. This is the case if it is a spurious imitation of another docu-
ment,84 or if it falsely purports to have been drawn up by somebody other than
its author,85 or to contain information (such as figures or dates) which it did not
originally contain and which is of material interest for the purposes of the trans-
action forming the background of the charge.86
The falsification can be achieved in many ways, for example, by the alter-
ation,87 erasure, substitution88 or addition89 of particulars on the document, or
by endorsement,90 but not, it is submitted, by the destruction of the whole docu-
ment. A document falsely purporting to be a copy of a non-existent document is
a forged document,91 as is one signed in the name of a fictitious person.92
6 Prejudice The requirement of prejudice is the same as in fraud,93 except
that the existence of potential prejudice in the case of forgery can be inferred at
an earlier stage than is the case in fraud, namely as soon as the forgery of the
document has been completed.94 As in fraud, the prejudice need not be actual or
patrimonial.95 On the other hand, the mere forgery of a document does not auto-
matically imply prejudice.96 The fact that the forgery is clumsy or ineffectual
does not mean that there cannot be potential prejudice.97
7 Intent The requirement that X must have the intention to defraud (and not
merely to deceive)98 is identical with the corresponding element in the crime of
fraud.99 The intention to defraud obviously entails knowledge on the part of X
that she is falsifying a document.
________________________

82 Dreyer 1967 4 SA 614 (E) 618C; Banur Investments (Pty) Ltd supra 772E–G.
83 Banur Investments (Pty) Ltd 1970 3 SA 767 (A).
84 Dreyer supra 618B–C; Banur Investments (Pty) Ltd supra 772D.
85 As in Qumbu 1952 3 SA 390 (O); Leballo supra.
86 The falsification of information which is not of material interest for the purposes of the
transaction forming the background of the charge does not amount to forgery – Redeling-
huys 1990 1 SACR 443 (W). If the falsified information is not material, it will in any event
not result in any prejudice.
87 De Beer 1940 TPD 268; Kruger 1950 1 SA 591 (O).
88 Leibrandt 1939 WLD 377.
89 Muller 1953 2 SA 146 (T).
90 Joffe 1934 SWA 108.
91 Motete 1943 OPD 55; Leballo 1954 2 SA 657 (O).
92 Sedat 1916 TPD 431; Mashiya 1955 2 SA 417 (E).
93 McLean 1918 TPD 94; Letsoela 1942 OPD 99.
94 Hymans 1927 AD 35 38.
95 Macatlane 1927 TPD 708 (in this case the potential prejudice was of a non-proprietary
nature, viz injury to Y’s honour or reputation); Kruger supra 596; Muller supra 148; Kep-
pler 1970 4 SA 673 (T) 677.
96 Steyn 1927 OPD 172; Letsoela 1942 OPD 99 101; Muller supra 150C.
97 Crowe 1904 TS 581 582; Dormehl 1966 1 PH H223 (A). If X puts Y’s signature to a docu-
ment with Y’s consent there is no falsification of the document and therefore no prejudice.
See Potgieter 1979 4 SA 64 (ZRA).
98 Bell 1963 2 SA 335 (N) 337. Contra Keppler 1970 4 SA 673 (T) 667–678, in which it was
held (incorrectly, it is submitted) that a mere intention to deceive is sufficient.
99 Sedat supra 438; Letsoela 1942 OPD 99; Bell supra 337.
 FRAUD AND RELATED CRIMES 535

8 Uttering Uttering consists in unlawfully and intentionally passing off

a false document to the actual or potential prejudice of another.

In most cases the person who utters the document is the one who forged it, and
she will be charged with two offences, namely forgery and uttering.100 If the per-
son who utters the document is not the person who forged it, she will be charged
with uttering only.101 Uttering, like forgery, is merely a species of fraud, and the
elements of prejudice and intention to defraud are similar to the corresponding
elements in the crime of fraud.102 The requirement of a false document is the
same as in the crime of forgery.
The only element in the definition of this crime which does not also form part
of the definition of forgery is the “passing off ” of the document. This phrase
means that the document is communicated to another person by, for example,
an offer, delivery or attempt to make use of it in some or other way. The person
who utters the document must represent it as genuine,103 and therefore the mere
handing over of a false document by a forger to an accomplice, who is aware of
the fact that it is a forged document and who has not yet uttered the document
herself, does not constitute an uttering of the document.104 If the document does
not reach the person to whom it is addressed (eg where a letter is lost in the
post), there is only attempted uttering.
The passing off of the document can take place through the instrumentality of
some other person or agent.105 It is immaterial whether the person to whom the
document is uttered is in fact misled thereby.106

C THEFT BY FALSE PRETENCES

1 Definition A person commits theft by false pretences if she unlawfully

and intentionally obtains movable, corporeal property belonging to another
with the consent of the person from whom she obtains it, such consent
being given as a result of a misrepresentation by the person committing the
crime, and appropriates it.

2 Elements of crime The elements of the crime are the following: (a) a mis-
representation (b) actual prejudice (c) a causal link between the misrepresen-
tation and the prejudice (d ) an appropriation of the property (e) unlawfulness
and ( f ) intention.

________________________

100 Hymans supra 38.

101 Ibid 38, 40. Forgery and uttering are two separate crimes – Joubert 1961 4 SA 196 (O)
199–200; Van Niekerk 1980 1 SA 594 (O).
102 Kruger 1950 1 SA 591 (O) 594.
103 Kolia 1937 TPD 105 108–109.
104 Ibid; Latib 1968 1 SA 177 (T).
105 Joffe 1934 SWA 108 109.
106 Latib supra 178H. Cf Seabe 1927 AD 28 32; Dyonta 1935 AD 52 57.
536 CRIMINAL LAW

3 Character This crime is regarded by the courts as a form of theft.107 It

comprises those cases of theft where Y is induced to part with her property in
favour of X as a result of X’s fraudulent misrepresentation.108 For example, X
falsely represents to housewife Y that she (X) repairs and services television
sets, and that Y’s husband has requested her to fetch their television set for ser-
vicing. On the strength of this misrepresentation Y allows X to remove the set
from the home. X disappears with it and appropriates it for herself. These cases
are treated as theft because it is assumed that there was no valid consent by Y
to X’s taking of the thing: consent induced by fraud or misrepresentation is not
regarded as valid consent.109 Whether it is legally tenable to speak of theft where
Y has consented to the handing over of her property to X, although the consent
was “tainted”, has been questioned,110 but the courts have for more than a cen-
tury consistently dealt with these cases as theft under the special heading of
“theft by false pretences”.
4 Relation to fraud All cases of theft by false pretences are at the same time
also fraud.111 The converse, however, is not the case. The crime of fraud is com-
pleted the moment the misrepresentation has come to the notice of the represen-
tee. For theft by false pretences to be completed, however, it is further required
that the misrepresentation be followed by the handing over of the property to X
and her appropriation of it.112 In cases of theft by false pretences, therefore, two
crimes are actually committed: first, fraud and then theft.
5 Doubtful whether crime necessary The question arises whether the crime
is at all necessary in our law. Criminal law would be none the poorer if this
crime were discarded. Nobody who would otherwise be guilty of theft by false
pretences would escape the sanctions of criminal law if the crime were dis-
pensed with. The person who commits the act complained of would invariably
be guilty of either fraud or (according to the courts) theft. In some cases113 the
crime has indeed been described as superfluous.
It is nevertheless submitted that it would not be satisfactory to treat all cases
of theft by false pretences simply as cases of fraud. A conviction of fraud only
does not fully reflect all the blameworthy elements of X’s conduct. After all,
she causes not only proprietary prejudice by her fraudulent behaviour but goes
________________________

107 Teichert 1958 3 SA 747 (N) 753G; Ex parte Minister of Justice: in re R v Gesa; R v De
Jongh 1959 1 SA 234 (A) 239D; Vilakazi 1959 4 SA 700 (N) 701H; Anderson 1962 2
SA 286 (O) 287; Government of the Republic of SA v Pentz 1982 1 SA 553 (T) 560–561;
Mia 2009 1 SACR 330 (SCA) par 16.
108 Maklakla 1919 TPD 336 340; Salemane 1967 3 SA 691 (O) 692G.
109 Ex parte Minister of Justice: in re R v Gesa; R v De Jongh supra 240D.
110 Especially by Van den Heever J in Mofoking 1939 OPD 117 118; Coovadia 1957 3 SA
611 (N) 612F; Teichert supra 753; De Wet and Swanepoel 325 ff; 407–417.
111 Davies 1928 AD 165 170; Ex parte Minister of Justice: in re R v Gesa; R v De Jongh
supra 240; Nkomo 1975 3 SA 598 (N) 602C. Contrast, however, Mia 2009 1 SACR 330
(SCA)
112 Davies supra 170.
113 Stevenson 1976 1 SA 636 (T) 637. In this case Hiemstra J said that the Attorney-General
of the Transvaal had assured him that he never allowed anybody to be charged with this
crime. See also Mphatswanyane 1980 4 SA 253 (B). See further the severe criticism in
De Wet and Swanepoel 416–417.
 FRAUD AND RELATED CRIMES 537

further and turns this prejudice to her advantage by appropriating the property.
It is submitted that the best way of treating such cases is to charge X with
ordinary theft, but to include a specific allegation in the charge sheet to the
effect that X obtained the property as a result of false pretences.114

________________________

114 Levitan 1958 1 SA 639 (T) 644; Teichert supra 753–754; Knox 1963 3 SA 431 (N);
Salemane 1967 3 SA 691 (O) The judgment of the Supreme Court of Appeal in Mia
2009 1 SACR 330 (SCA) may serve as authority for the usefulness of this crime. In his
discussion of this case in 2009 Annual Survey of SA Law 316, Hoctor expresses the
view that the crime “has a useful role to play in South African criminal law”.
 CHAPTER
XX

CRIMES RELATING TO DAMAGE

TO PROPERTY

A MALICIOUS INJURY TO PROPERTY

1 Definition A person commits malicious injury to property if he unlaw-

fully and intentionally damages:
(a) property belonging to another; or
(b) his own insured property, intending to claim the value of the property
from the insurer.1

2 Elements of the crime The elements of the crime are the following: (a)
damaging (b) property (c) unlawfully and (d ) intentionally.
3 Origin, overlapping and appellation The crime as it is known today was
not known in Roman or Roman-Dutch law.2 It was evolved by the Cape courts
during the last century, being modelled partly on English law and partly on
analogous provisions to be found in the common law.3
It overlaps with the crime of arson, which is simply a particular form of ma-
licious injury to property.4 It also overlaps with certain instances of theft, namely
where X destroys Y’s property with the intention of permanently depriving Y of
his property.5 If X’s conduct amounts to an appropriation of the property X may
________________________

1 Mashanga 1924 AD 11 12; Bowden 1957 3 SA 148 (T) 150B; Kgware 1977 2 SA 454 (O)
455. In Mnyandu 1973 4 SA 603 (N) 606A it was said that the crime is the unlawful and
intentional damaging of property belonging to another person or in which another person
has a substantial interest. The reason for the (b) section of the definition is to be found in
Gervais 1913 EDL 167 and Mavros 1921 AD 19, discussed infra par 4.
2 In Roman law only certain forms of what is today known as malicious injury to property
were punished: see D 47 8 2 1; D 47 9 1 1; D 47 9 4; D 47 7 2, and D 48 6. For a discus-
sion of the position in Roman-Dutch law generally, see Solomon 1973 4 SA 644 (C) 647H,
648B–C.
3 See generally the discussion in Solomon supra 647H.
4 Motau 1963 2 SA 521 (T) 523D–E.
5 As in Maruba 1941 2 PH H249 (O); Kama 1949 1 PH H66 (O); Kula 1955 1 PH H66 (O);
Dlomo 1957 2 PH H184 (E); Ndukiso 1945 EDL 119 and Mohale 1955 3 SA 563 (O). In
[continued]

539
540 CRIMINAL LAW

be charged with either malicious injury to property or theft. It may also overlap
with housebreaking with intent to commit a crime, for instance, where X breaks
a window in order to gain access to a house.
The use of the word “malicious” in the description of the crime is unneces-
sary, for it wrongly creates the impression that X must act with an evil motive or
“malice”. X’s motive is in fact irrelevant. All that is required is that X damages
the property intentionally.
4 The property The property must be corporeal, and may be either movable
or immovable.6 The crime cannot be committed in respect of property which
belongs to nobody (res nullius).7 In principle one cannot commit the crime in
respect of one’s own property, for it stands to reason that the owner is free to do
with his property what he likes. For example, if I no longer like my rickety old
table, I commit no crime if I chop it to pieces and use it as firewood.
However, an early Eastern Cape case, Gervais,8 held that X commits ma-
licious injury to property if he sets fire to his own insured property in order to
claim its value from the insurance company. This decision can be criticised: if X
falsely represents to the insurance company that somebody else has destroyed
his property, he commits fraud. It is unnecessary to broaden the ambit of the
crime of malicious injury to property so as to include this type of situation.
Nevertheless in Mavros9 the Appellate Division held that conduct similar to that
in Gervais does amount to arson (which is but a species of malicious injury to
property). Mavros is an appeal court decision and it is unlikely that the courts
will depart from it. If one assumes that arson is but a species of malicious injury
to property, one must accept that our courts will also, as far as malicious injury
to property is concerned, feel bound to follow Mavros, and will, thus, hold that
X commits malicious injury to property if he damages or destroys his own
insured property in order to claim its value from the insurer.
5 Damage Damage, as understood in the definition of this crime, is difficult
to define in abstract terms. It includes the total or partial destruction of property,
as where an animal is killed10 or wounded;11 the loss of the property or sub-
stance, for example, the draining of petrol from a container, and the causing of
any injury (either permanent or temporary) to property. Where the injury is
trifling it will be disregarded by the law because of the maxim de minimis non
curat lex (as where X, without the consent of his neighbour Y, trims Y’s over-
grown hedge with a pair of garden shears).12 There can be damage even where

________________________

the first four cases X was convicted of malicious injury to property and in the last two of
theft, although the facts in all six of these cases were materially similar (the killing of
another’s animal).
6 In Bowden supra the property damaged was an immovable statue.
7 Malamu Nkatlapaan 1918 TPD 424 428; Mandetela 1948 4 SA 985 (E) 990.
8 1913 EDL 167. This case was referred to with apparent approval in Mtetwa 1963 3 SA 445
(N) 449.
9 1921 AD 19.
10 Maritz 1956 3 SA 147 (G); Moller 1971 4 SA 327 (T); Oosthuizen 1974 1 SA 435 (C).
11 Laubscher 1913 CPD 123; Mashanga 1924 AD 11 (ears of an ox were cut).
12 This is what happened in Dane 1957 2 SA 472 (N).
 CRIMES RELATING TO DAMAGE TO PROPERTY 541

the original structure of the property is not changed as, for example, where a
statue is painted.13 It will usually be assumed that there is damage if the prop-
erty has been tampered with in such a way that it would cost the owner money
or at least some measure of effort or labour to restore it to its original form.14 If
X writes or paints graffiti on a wall or structure, he commits the distinct crime
of contravention of section 44 of the General Law Further Amendment Act 93
of 1962.15
6 Unlawfulness Otherwise unlawful injury to property may be justified by
(a) statutory provisions giving X the right to destroy, wound or catch trespass-
ing animals;16 (b) necessity, as where X defends himself against an aggressive
animal17 or defends his property against an attack by an animal;18 (c) official
capacity, as where a policeman breaks open a door to gain access to a house in
which a criminal is hiding; (d ) consent by the owner of the property, and (e)
obedience to orders.19
7 Intention The form of culpability required for the crime is intention. The
terms “malice” or “malicious”, which are often employed to describe X’s state
of mind, derive from English law20 and may create the impression that the
crime can be committed only if X acts with some improper or ulterior motive,
such as personal ill-will or spite. This is not the case.21 The ordinary principles
of criminal law relating to intention apply. X’s motive is irrelevant. Damaging
the property need not be X’s principal aim: it is sufficient if he foresees the
possibility that the damage may be caused and nevertheless proceeds with his
actions.22
X need not intend to harm any particular person;23 in fact, in many instances
the true owner or person entitled to the use or possession of the property is
unknown to him. The intention may be present even if it forms part of a larger
design to commit some other crime, such as escaping from custody.24 If X bona
fide believes that he is entitled to damage the property whereas in fact he has no
such authority, he lacks the intention necessary to constitute the crime.25

________________________

13 This is what happened in Bowden 1957 3 SA 148 (T).

14 Bowden supra 150G.
15 For a discussion of this provision, see Van Rooyen 2001 SACJ 238.
16 See the defence raised in Oosthuizen 1974 1 SA 435 (C); Van der Westhuizen 1976 2 PH
H194 (C).
17 Laubscher 1913 CPD 123 126 (defending oneself against an attack by an ostrich); Jaffet
1962 2 PH H220 (R) (police dog wounded in “self-defence”).
18 Dittmer 1971 3 SA 296 (SWA) 298; Moller 1971 4 SA 327 (T) 329.
19 Cf Stewart 1903 TS 456 and Maritz supra.
20 As emphasised in Ncetendaba 1952 2 SA 647 (R) 650H.
21 Shelembe 1955 4 SA 410 (N) 411D; Mnyandu 1973 4 SA 603 (N) 605H.
22 Ncube 1968 2 SA 18 (R) 19; Kgware 1977 2 SA 454 (O) 455.
23 Malamu Nkatlapaan supra 428; Mtetwa 1963 3 SA 445 (N) 449D–E.
24 Shelembe 1955 4 SA 410 (N) 411.
25 Shahmohamed v Hendriks 1920 AD 151 158; Barber 1937 EDL 79.
542 CRIMINAL LAW

B ARSON

1 Definition A person commits arson if he unlawfully and intentionally

sets fire to:
(a) immovable property belonging to another; or
(b) his own immovable insured property, in order to claim the value of the
property from the insurer.26

2 Elements of crime The elements of the crime are the following: (a) setting
fire to (b) immovable property (c) unlawfully and (d) intentionally.
3 Requirements for crime Arson is only a particular form of the crime of
malicious injury to property.27 The crime can be committed only in respect of
immovable property.28 If movable property is set on fire the crime of malicious
injury to property may be committed, provided the other requirements for this
crime are complied with. The crime is completed only at the moment that the
property has been set on fire.29 If X is caught at a stage before the property has
been set alight he is guilty of attempted arson only, provided his conduct has,
according to the general rules governing liability for attempt, proceeded beyond
mere acts of preparation.30
As in malicious injury to property one cannot in principle commit arson in
respect of one’s own property. Yet the courts, including the Appellate Division
in Mavros,31 have held that X commits arson if he sets fire to his own insured
property in order to claim its value from the insurer.32 It would have been better
to punish this type of conduct as fraud instead of arson, but the courts will in all
probability not depart from the appeal court’s view that such facts amount to
arson and this is the reason the crime was defined above in terms including this
type of situation.
Intention, and more particularly an intention to damage property by setting
fire to it, thereby causing patrimonial harm to somebody, is required.33 Dolus
eventualis is sufficient.34

________________________

26 In Soqokomashe 1956 2 SA 142 (E) 142E arson is defined as “the intentional setting on
fire of any immovable property with intention to injure someone”. Since arson is merely
a form of malicious injury to property the definition of this crime is dependent on that of
malicious injury to property. See supra XX A 1.
27 Motau 1963 2 SA 521 (T) 523D–E.
28 Mavros 1921 AD 19 (“buildings and other immovable property”); Mabula 1927 AD 159
161, 162; Mataung 1953 4 SA 35 (O) 36A–B; Motau supra 522.
29 Viljoen 1941 AD 366 367; Soqokomashe supra 143E.
30 Schoombie 1945 AD 541.
31 1921 AD 19.
32 Apart from Mavros, see also Van Zyl 1987 1 SA 497 (O).
33 Mavros supra 22; Kewelram 1922 AD 213 216; Shein 1925 AD 6 12.
34 Cf Kewelram supra and Shein supra.
 CRIMES RELATING TO DAMAGE TO PROPERTY 543

C HOUSEBREAKING WITH INTENT TO

COMMIT A CRIME

1 Definition Housebreaking with intent to commit a crime consists in

unlawfully and intentionally breaking into and entering a building or struc-
ture, with the intention of committing some crime in it.35

2 Elements of crime The elements of the crime are the following: (a) break-
ing and (b) entering (c) a building or structure (d ) unlawfully and (e) intention-
ally.
3 Character of crime The crime was unknown in Roman-Dutch law.36 The
crime as we know it today was developed under the strong influence of English
law during the nineteenth century. Whether the end result of the development
of this crime in our law is satisfactory in all respects is very doubtful. The most
fundamental criticism against the crime as it is known today is that the law
places all the emphasis on the housebreaking and the intent, instead of on the
unlawful entry, which is the gravamen of the offence.37 What is actually pro-
tected, namely the right of a householder to undisturbed habitation of his house
or storage of his property,38 seems to be forgotten while emphasis is laid on
artificial rules governing “breaking”, “entering”, “premises” and “intention to
commit a crime”.39 The latter intention is threatening to become a mere fiction
since a person can be charged with and convicted of a crime called “house-
breaking with intent to commit a crime unknown to the prosecutor”.40
4 Housebreaking alone not a crime Housebreaking per se is not a crime41
(although the act of housebreaking as such may, depending upon the circum-
stances, amount to the crime of malicious injury to property). To constitute the
crime the housebreaking must be accompanied by the intention of committing
some other crime. In practice housebreaking is mostly committed with the inten-
tion to steal, and charged as such, but in principle charges of housebreaking with
intent to commit any crime are competent.42 The legislature has even sanctioned

________________________

35 The definition put forward in Hunt 707 and Burchell and Milton 857 reads: “Housebreak-
ing with intent to commit a crime consists in unlawfully breaking and entering premises
with intent to commit that crime.” Cf also the brief definition in Badenhorst 1960 3 SA
563 (A) 566B.
36 Badenhorst supra 566B–C.
37 Faison 1952 2 SA 671 (R) 673A–B.
38 Slabb 2007 1 SACR 77 (C) 81a–b. Hoctor 1998 Obiter 96 examines different possible
rationales for the crime and argues that an overarching rationale can be found in the pro-
tection of the owner or occupant against the psychological trauma and sense of violation
invariably accompanying a housebreaking.
39 See the criticism of this crime in Ngobeza 1992 1 SACR 610 (T) 614e–h; Abrahams 1998
2 SACR 655 (C) 656; Woodrow 1999 2 SACR 109 (C) 111h–112c; De Wet and Swanepoel
360 ff, especially 365–372; Hoctor 289–298 and Snyman 1977 SACC 11 28–30; 1993
SACJ 38.
40 Infra par 11.
41 Hlongwane 1992 2 SACR 484 (N) 485; Maseko 2004 1 SACR 22 (T) 23.
42 Schonken 1929 AD 36 46; M 1989 4 SA 718 (T).
544 CRIMINAL LAW

charges of housebreaking with the intention of committing a crime unknown to

the prosecutor.43
As “housebreaking with intent to steal” is a crime in its own right, X is charged
with two crimes if he is charged with “housebreaking with intent to steal and
theft”.44 However, it is still uncertain whether a conviction of “housebreaking
with intent to steal and theft” is a conviction of a single crime or of two crimes.45
In practice this is unimportant, for even if one holds that two crimes have been
committed they are treated as one crime for the purposes of punishment. It is
submitted that the better view is that two crimes have been committed.
5 Building or structure Generally, the house, structure or premises in re-
spect of which the crime is committed can be any structure which is or might
ordinarily be used for human habitation or for the storage or housing of prop-
erty.46 It is most often a house (irrespective of whether it has one or many rooms),
store-room, business premises, an outbuilding or a factory. It has been held that
the crime can also be committed in respect of a tent wagon used as a residence47
and a cabin on a ship,48 but not in respect of the following: a railway truck used
for conveying goods;49 a fowl-run made of tubes and wire netting,50 and an en-
closed backyard.51 Neither can the crime be committed by breaking into a motor
car.
In Abrahams52 the court held that the crime cannot be committed in respect
of a tent standing next to a caravan in which there was inter alia a fridge, from
which X stole food. It is submitted that this decision is wrong. The tent was
probably attached to the caravan and was used for human habitation or the stor-
age of goods. The fact that the “walls” of this structure were of canvas and not
of brick or some more solid material, is immaterial.
It is difficult to deduce from the cases a general principle that can be applied
in order to decide whether a particular premises or structure qualifies as one in
respect of which the crime can be committed. De Wet and Swanepoel53 con-
cluded that if the structure is used for human habitation it does not matter
whether the structure is movable or immovable, but, if it is used for the storage
of goods, it must be immovable.

________________________

43 S 95(12), read with ss 262 and 263 of the Criminal Procedure Act 51 of 1977, and see
infra par 11.
44 Zamisa 1990 1 SACR 22 (W) 23d–e; Cetwayo 2002 2 SACR 319 (E) 321.
45 Housebreaking with intent to steal and theft were regarded as a single crime in Impey
1960 4 SA 556 (E) 566G, but regarded as comprising two separate crimes in Mkize 1961
4 SA 77 (N) 77H; Buthelezi 1961 4 SA 376 (N); Chinyerere 1980 2 SA 576 (RA) 580;
Zamisa 1990 1 SACR 22 (N).
46 Lawrence 1954 2 SA 408 (C) 409; Meyeza 1962 3 SA 386 (N); Ndhlovu 1963 1 SA 926
(T) 927; Ngobeza 1992 1 SACR 610 (T) 613h.
47 M’Tech 1912 TPD 1132.
48 Lawrence supra 409.
49 Johannes 1918 CPD 488.
50 Charlie 1916 TPD 367.
51 Makoelman 1932 EDL 194; Ngobeza 1992 1 SACR 610 (T) 613j, 614b.
52 1998 2 SACR 655 (C) 656.
53 At 351. In Ngobeza supra 613i the court seemed to agree with this view of the law.
 CRIMES RELATING TO DAMAGE TO PROPERTY 545

Although this conclusion seems to tally in broad outline with the case law, it
was explicitly rejected as a criterion by the Cape court in Temmers.54 In this
case the court held that the criterion to be used should rather be the following:
one must distinguish between
• Firstly, a structure “in which goods are kept or stored to safeguard them
from the elements or misappropriation, or placed for functional reasons”.
The crime can, according to the court, be committed in respect of this type
of structure.
• Secondly, a structure “(like packing cases or containers) in which goods are
placed for ease of storage or conveyance”. The crime can, according to the
court, not be committed in respect of this category.55
Thus, X does not commit the crime if he “breaks into” a suitcase or even “a
modern steel container lying on the wharf-side prior to being loaded onto a
vessel for conveyance”.56 On the other hand, it would seem that, according to
the criterion in Temmers, the crime can be committed in respect of virtually any
structure used for human habitation, no matter how flimsy its construction.
Whether the criterion laid down in Temmers will be followed in other div-
isions, remains to be seen.57 This criterion may be criticised for its vagueness.
Goods may, after all, be placed in a container or structure both in order “to
safeguard them from the elements or misappropriation” and “for ease of stor-
age”, in which case the structure would fall into both categories and it would
seem impossible to distinguish between the two categories. The phrase “or
placed for functional reasons” in the formulation of the criterion also seems to
be too vague to be workable.58
Whatever criterion one adopts, it should be noted that if the structure is used
for the storage of goods (and therefore qualifies as a structure for the purposes
of this crime) it need not necessarily be so large that a person of average height
can enter it. Thus, there have been convictions of this crime where an immov-
able display cabinet separate from but forming an integral part of a shop has
been broken into,59 and where a mine magazine made of concrete and used for
the storage of dynamite, but too small for a person to enter, has been broken
into.60 The material of which it is made is of little importance. It may vary from
a canvas tent61 to a structure built of thick concrete.62
________________________

54 1994 1 SACR 357 (C).

55 See 361b–c.
56 See 361c.
57 In Mavungu 2009 1 SACR 425 (T) the court based its decision that the crime can be
committed in respect of a caravan on both the criteria laid down in De Wet and Swanepoel
and that recommended by the court in Temmers. Since the court relied on both criteria, its
judgment cannot be construed as an unqualified support for one criterion at the expense
of the other.
58 Hoctor 2008 SACJ 315 and 1998 Obiter 127 is of the opinion that the criterion laid down
in Temmers is acceptable.
59 Ndhlovu 1963 1 SA 926 (T).
60 Botha 1960 2 SA 147 (T).
61 Thompson 1905 ORC 127. Contra Abrahams 1998 2 SACR 655 (C) 656. It is submitted
that this decision is wrong.
62 Botha supra.
546 CRIMINAL LAW

A person who has a right of entry to a house or building may still commit
housebreaking in respect of a separate room in that building.63
6 Is housebreaking in respect of a caravan possible? Given the vagueness
of the criterion (or lack thereof) to decide whether a structure qualifies as one in
respect of which this crime can be committed, it comes as no surprise to find
that the courts experience considerable difficulties in deciding whether a cara-
van (which by definition is “a house on wheels”) qualifies. Before the Temmers
case was decided, it seems as if the courts had nevertheless decided that a cara-
van did qualify, even if the breaking-in took place at a time when nobody was
living in it,64 but that it did not qualify if, although it could not be moved, it was
used merely for the purpose of storing goods.65
This construction is perfectly explicable in terms of the criterion laid down
by De Wet and Swanepoel, according to which a structure used merely for the
storing of goods had to be immovable in order to qualify. However, in terms of
the criterion formulated in Temmers,66 a caravan used merely for the storage of
goods may qualify, and in this case the court in fact held that a caravan used as
a shop and which was not moved around but was positioned in one particular
place “with a relative degree of permanency”, did indeed qualify.67 The struc-
ture in question in Temmers was for all practical purposes an immovable struc-
ture. It would therefore have qualified as one in respect of which the crime can
be committed even in terms of the criterion of De Wet and Swanepoel. In
Mavungu68 the court held that housebreaking can be committed in respect of an
empty caravan that was displayed for sale.
It is submitted that, as far as the question whether housebreaking can be
committed in respect of a caravan is concerned, one must simply follow the fol-
lowing common-sense approach:69 the normal purpose of a caravan is to serve
as a place in which to stay, although people seldom stay permanently in a cara-
van. Since the normal use of a caravan is human habitation, it does qualify as a
structure in respect of which housebreaking can be committed. Only in excep-
tional cases, namely when the caravan has been converted into a place for storing
goods on a reasonably permanent basis, does it not qualify as such a structure,
as where the wheels have been removed and the caravan placed on bricks or
other blocks to serve as a dovecot.
It is submitted that the criterion suggested by De Wet and Swanepoel, accord-
ing to which a structure used for the storage of goods or property must be im-
movable in order to qualify, is more workable, less vague, and therefore to be
preferred to the criterion suggested in Temmers.
A trailer that is hooked onto the back of a motor car and which is meant only
for the transportation of goods, ought according to the criterion advanced above,
________________________

63 Coetzee 1958 2 SA 8 (T); Myeza 1962 3 SA 386 (N).

64 Madyo 1990 1 SACR 292 (E).
65 Jecha 1984 1 SA 215 (Z).
66 1994 1 SACR 357 (C) 361b–c.
67 See 361e.
68 2009 1 SACR 425 (T), discussed by Snyman 2010 THRHR 158.
69 In Madyo supra 294d-e Kannemeyer JP advocated such an approach to this issue.
 CRIMES RELATING TO DAMAGE TO PROPERTY 547

ought not to qualify as a structure in respect of which the crime can be commit-
ted, because it is movable and not intended for human habitation.70
7 Breaking The act can be subdivided into two separate components, namely
(a) breaking into the structure and (b) entering it. The first component will first
be considered.71
For breaking to take place no actual damage to the structure need be inflicted,72
although it usually is in practice. The “breaking” consists of the removal or dis-
placement of any obstacle which bars entry to the structure and which forms part
of the structure itself.73 Thus, to push open a closed (though not locked) door or
window74 or even to push open a partially closed door or window75 will amount
to breaking, but there is no breaking if one merely walks through an open door,76
climbs through an open window77 or stretches one’s arm through an open hole.78
The obstacle which is removed in order to break in need not be a permanent
attachment to the building. However, it must form part of its structure. There-
fore the mere shifting of blinds in front of an open window in order to gain
access to the house will qualify as a “breaking in”,79 but not the mere shifting of
a pot plant on a window-sill. Neither will the mere moving of a curtain amount
to “entering”, since a curtain cannot be regarded as an “obstruction”.80 If X
arranges with an associate Z that Z, who normally has a right to be in the house
during the day, will conceal himself in it after he has finished his work and will
open the door from the inside to let X in, X is considered to have “broken into”
the house.81 (X merely used Z as a “tool” to gain entry into the house.) The pos-
ition is the same if X, unable to climb through an opening in a building, gets a
child to climb through it and to open the door from the inside.82
Finally, the breaking must be into the building. To break out of a building or
structure after having entered it without a breaking-in cannot entail liability for
housebreaking.83
8 Entering A mere “breaking” without “entering” is not sufficient to consti-
tute the crime,84 although it may amount to an attempt to commit the crime.85
________________________

70 Snyman 2010 THRHR 157 163.

71 For a detailed discussion of this requirement, see Hoctor 1998 Obiter 201.
72 Mososa 1931 CPD 348 352; Faison 1952 2 SA 671 (R) 673.
73 Lekute 1991 2 SACR 221 (C); Ngobeza 1992 1 SACR 610 (T) 614c.
74 Faison supra 673B–C; Maelangwe 1999 1 SACR 133 (NC) 146.
75 Mososa 1931 CPD 348 351–352; Moroe 1981 4 SA 897 (O) 899.
76 Moyana 1921 EDC 139 140; Makoelman 1932 EDL 194.
77 Rudman 1989 3 SA 368 (E) 385.
78 Chalala 1947 3 SA 62 (O); Dyenti 1973 1 PH H4 (C).
79 Lekute 1991 2 SACR 221 (C).
80 Hlongwane 1992 2 SACR 484 (N) 486h–i ; Small 2005 2 SACR 300 (C) 302–303.
81 Tusi 1957 4 SA 553 (N) 556; Maelangwe 1999 1 SACR 133 (NC) 146i.
82 Maelangwe 1999 1 SACR 133 (NC) 147a–b.
83 Maunatlala 1982 1 SA 877 (T); Ngobeza supra 614c–d.
84 Maruma 1955 3 SA 561 (O); Melville 1959 3 SA 544 (E) 545E.
85 Ncanca 1954 4 SA 272 (E). For cases of attempted housebreaking with intent to commit
a crime where actual breaking has not taken place, see Mtetwa 1930 NPD 285; Ndhlovu
1963 1 SA 926 (T). On the entry requirement in this crime generally, see Hoctor in Hoctor
and Schwikkard (ed) The Exemplary Scholar: Essays in Honour of John Milton 45.
548 CRIMINAL LAW

Like the concepts “building” and “breaking”, “entering” also has a very tech-
nical meaning. The entry is complete the moment X has inserted any part of his
body, or any instrument he is using for that purpose, into the opening with the
intention of thereby exercising control over some contents of the building or
structure.86 Entry obtained by fraud is not sufficient to constitute housebreak-
ing, but entry obtained by threats (as where X threatens to kill a gatekeeper if
he does not open the gate for him) does constitute illegal “breaking” and “entry”
for the purposes of this crime.87
9 Unlawfulness The breaking into and entering of the building or structure
must be unlawful. Thus, the crime is not committed if one breaks into and enters
one’s own house, or a room which one shares with someone else,88 or if one has
permission to enter (eg as a servant).89 But the permission given to, for example,
a servant to enter a building may be qualified: he may, for example, be allowed
to enter only certain parts of the building or at certain times of the day only.
Therefore a servant who, for example, breaks into a built-in safe in an office
which he is cleaning may commit the crime.90
Where Y requests X, a locksmith, to open the door of his house because he,
Y, has lost his key, X’s breaking into and entering the house take place with
Y’s consent and are therefore not unlawful. The unlawfulness may conceivably
also be excluded on grounds of justification such as necessity, presumed con-
sent, superior orders and official capacity (as where a policeman breaks open a
door in order to arrest a criminal).
If X, who is walking in a street, is surprised by an unexpected, heavy thunder-
storm which makes him fear for his life, and runs to a house, opens the door
uninvited and enters the house in order to take shelter against the elements, he
commits no crime, first, because his “breaking into the house” is justified by
necessity and, secondly, because he lacks the intention of committing any crime
inside.
10 Intention X must, firstly, have the intention of unlawfully breaking into
and entering the house or structure. Such intention will be absent if, for example,
he believes that he is breaking into his own house, or that he is committing the
act of housebreaking with the approval of the owner of the house.
Secondly, he must at the time of the housebreaking have the intention of
committing some other crime inside, for mere housebreaking on its own is not a
crime. This further crime which he intends to commit must be a different one
from the housebreaking itself.91 Housebreaking with intent to commit malicious
injury to property cannot therefore be committed where such malicious injury
to property is the same act as the housebreaking itself. The position is different

________________________

86 Melville 1959 3 SA 544 (E) 545E–F.

87 Mososa 1931 CPD 348; Maisa 1968 1 SA 271 (T) and especially Cupido 1975 1 SA 537
(C) 538. On entry by means of threats, duress or intimidation, as well as the “doctrine of
constructive breaking”, see Bhamjee and Hoctor 2005 Obiter 726.
88 Faison 1952 2 SA 671 (R) 673.
89 Mashigo 1976 6 PH H210 (A).
90 Coetzee 1958 2 SA 8 (T) 10.
91 Melville 1959 3 SA 544 (E).
 CRIMES RELATING TO DAMAGE TO PROPERTY 549

if the housebreaker intends to commit malicious injury to property within the

building once he has gained entry.92 This further intended crime is usually theft
but may be any other crime known either in common or statutory law,93 such as
murder,94 rape,95 assault,96 robbery97 or malicious injury to property.98
If it is difficult to ascertain which crime the housebreaker intended to commit,
there are two possibilities: firstly, he may be charged with housebreaking with
the intention of contravening some trespass ordinance or statute99 and, secondly,
in terms of section 95(12) of the Criminal Procedure Act, he may be charged
with housebreaking with the intention of committing “a crime unknown to the
prosecutor”.
The intention to commit a crime must be present at the moment of breaking
and entering. If X forms this intention only after he has entered the building, the
crime of housebreaking with intent is not committed.100 It is submitted that X
may then be charged with malicious injury to property or, depending upon the
circumstances, with housebreaking with intent to commit a crime unknown to
the prosecutor.
11 Housebreaking with intent to commit a crime unknown to the prosecutor
The legislature has made it possible to charge101 and convict102 a person of
“housebreaking with intent to commit an offence unknown to the prosecutor”.
There is much to be said for the view that this crime (namely “housebreaking
with intent to commit an offence unknown to the prosecutor”) has no right of
existence. Housebreaking on its own is not a crime. What in effect happens
here is that a person is charged with having committed something which is not
a crime (namely housebreaking) with the allegation that the act was accom-
panied by an intention to commit another, unknown, crime. The mere intention
to commit even a known crime is not punishable. After all, the law does not
punish mere thoughts. To charge somebody with such a crime is therefore to
charge him with something which conceptually cannot constitute a crime.
What is more, a charge or conviction of housebreaking with intent to commit
an unknown crime contains a contradiction: how can a court find as a fact that
X intended to commit a crime if it is impossible for that court to determine
what this intended crime was?103 It is submitted that a court may largely evade
________________________

92 Badenhorst 1960 3 SA 563 (A) 566–567.

93 Schonken 1929 AD 36 46.
94 Cumoya 1905 TS 402 405.
95 Cumoya supra 405; Williams 1956 2 PH H192 (G).
96 Grobler 1918 EDL 124 127.
97 Cupido 1975 1 SA 537 (C).
98 Badenhorst 1960 3 SA 563 (A) 566.
99 Badenhorst supra; Konyana 1992 1 SACR 451 (O).
100 Andries 1958 2 SA 669 (E).
101 S 95(12) of the Criminal Procedure Act 51 of 1977.
102 Ss 262 and 263 of the Criminal Procedure Act 51 of 1977.
103 The inherent injustice of charging a person with housebreaking with intent to commit an
unknown offence was pointed out by Innes CJ in Cumoya supra 404–405. Hugo 1969
SALJ 22 23 argues that “(i)f at the end of the case the court is still in doubt as to which
offence the accused intended to commit, the doubt must surely extend to the possibility
that he intended to commit no offence at all, in which case he must be acquitted”. Hunt-
[continued]
550 CRIMINAL LAW

this criticism by endeavouring to ascertain what crime X intended to commit

and convicting him of housebreaking with intent to commit that particular crime,
rather than of housebreaking with intent to commit a crime unknown to the pros-
ecutor. When a court looks for the particular crime intended by X it very often
finds the crime to be trespassing; this so-called “intention to trespass” is seized
upon by the courts as a sort of deus ex machina to cover those cases where it is
impossible for the court to determine what X’s real intention was when he
committed the housebreaking. This makeshift solution, just like the whole idea
of “an intention to commit an unknown crime”, only serves to indicate the
artificiality of this crime.104
The question may arise whether a charge of housebreaking with intent to
commit a crime unknown to the prosecutor is not perhaps unconstitutional, on
the ground that it violates an accused’s right “to be informed of the charge with
sufficient detail to answer it”.105

D POSSESSION OF HOUSEBREAKING IMPLEMENTS106

1 Definition Section 82 of the Third General Law Amendment Act 129

of 1993 provides that any person who possesses any implement or object in
respect of which there is a reasonable suspicion that it was used or is
intended to be used to commit housebreaking, or to break open a motor
vehicle or to gain unlawful entry into a motor vehicle, and who is unable to
give a satisfactory account of such possession, is guilty of an offence and
liable on conviction to a fine,107 or to imprisonment for a period not
exceeding three years.

2 General The abovementioned section creates a crime which is closely

linked to the common-law crime of housebreaking with intent to commit a
crime. The section renders conduct which precedes the actual commission of
housebreaking punishable.
The structure of the crime created in section 82 strongly resembles that of the
well-known crime created in section 36 of the General Law Amendment Act 62
of 1955, according to which it is a crime to be found in possession of goods in
________________________

Milton 807 is similarly critical of charges alleging an unknown intent, describing it as

potentially prejudicial to the accused and smacking of a fishing expedition. See also the
criticism in Woodrow 1999 2 SACR 109 (C) 111–113, by De Wet and Swanepoel 369–
370 and Snyman 1977 SACC 11 29–30, as well as the remarks in Kesolofetse 2004 2
SACR 166 (NC).
104 In Woodrow 1999 2 SACR 109 (C) 112–113 the court was acutely aware of this illogical
aspect of the crime of “housebreaking with intent to commit a crime unknown to the
prosecutor”. Contrast, however, the view adopted in Slabb 2007 1 SACR 77 (C) 81.
105 S 35(3)(a) of the Constitution.
106 On this crime generally, see Hoctor 1999 Obiter 225.
107 If the provisions of the Adjustment of Fines Act 101 of 1991 are taken into account, the
maximum fine that may be imposed is R120 000 × 3 = R360 000 in the case of a
Magistrate’s Court which is not a Regional Court, and in the case of a Regional Court
R600 000 × 3 = R1.8 million. If the provisions of s 1(b) of the 1991 Act are taken into
account, a fine as well as imprisonment may be imposed.
 CRIMES RELATING TO DAMAGE TO PROPERTY 551

regard to which there is a reasonable suspicion that they have been stolen, in
circumstances where the person in whose possession the goods are found is un-
able to give a satisfactory account of such possession.108 Decisions dealing with
the interpretation of section 36 can therefore also be material to the interpret-
ation of section 82.109 The provisions of section 82 are not incompatible with
the Bill of Rights in the Constitution.110
2 Deficiency in wording of section 82 The section speaks only of imple-
ments that can be used to break open a motor vehicle or to gain unlawful entry
into a motor vehicle. It does not speak of implements or objects that may be used
to steal a motor vehicle. Therefore, if, as happened in Mailula,111 X is caught in
suspicious circumstances while he is in possession of an object (a motor vehicle
fuse) that is used or may be used to activate the ignition mechanism of a motor
vehicle, the section does not apply. It would seem that, as far as this aspect of
the crime is concerned, there is a deficiency in the definition of the crime, be-
cause the legislature in all probability intended to render punishable not only
the possession of housebreaking implements, but also implements that may be
used to steal motor vehicles, thereby creating a measure to combat the theft of
motor vehicles – a crime which is endemic in South Africa. However, the
limited wording of the section does not lend itself to such a wide interpretation,
as was indeed held in Mailula.112

E TRESPASS

1 Definition Section 1(1) of the Trespass Act 6 of 1959 provides that

any person who without the permission –
(a) of the lawful occupier of any land or any building or part of a build-
ing; or
(b) of the owner or person in charge of any land or any building or part of
a building that is not lawfully occupied by any person,
enters or is upon such land or enters or is in such building or part of a
building, shall be guilty of an offence unless he has lawful reason to enter
or be upon such land or enter or be in such building or part of a building.

2 Elements of the crime The elements of the crime are the following: (a)
damaging (b) property (c) unlawfully and (d ) intentionally.
3 General The crime of trespassing is derived from English law113 and serves
to complement the crime of housebreaking in protecting owners or lawful occu-
piers of immovable property from incursions by the lawless.
4 The conduct – entering or being upon The punishable conduct consists
in either entering the land or building (or part of the building) or being upon the
________________________

108 See the discussion of this crime supra XVIII E.

109 Mosoinyane 1998 1 SACR 583 (T).
110 Zondo 1999 1 SACR 54 (N).
111 1998 1 SACR 649 (T).
112 Supra.
113 See the discussion in Milton and Cowling J1–1.
552 CRIMINAL LAW

land or building (or part of the building). Entering (the land or building) refers
to the situation where X physically crosses the boundary of the land or building
and enters it. Being (upon the land or building) refers to the following type of
situation: X has already entered the property lawfully, since he entered with the
permission referred to in the statute or had a lawful reason for entering. How-
ever, the permission has ceased to be effective (eg because the owner or occu-
pier has withdrawn the permission or had given permission for only a certain
period, which has elapsed) or the lawful reason no longer exists (eg because X
had completed what he was supposed to do on the property) with the result that
his presence on the property has become unlawful. In such an event X must
leave the property. If he fails to do so, he commits a trespass because he “is
upon” the property without permission or without lawful reason – in other words,
he is unlawfully upon the property.
If the permission to be on the property is withdrawn, common sense dictates
that X must be afforded a reasonable opportunity of vacating the property, since
he cannot be expected immediately to “disappear into thin air”. It is essential
for the prosecution to allege and prove either the entry or the remaining (or, if
applicable, both), for strictly speaking section 1(1) creates two separate crimes,
namely entering the property and being upon it.114
As far as the meaning of “entry” is concerned, it would seem that the word
denotes some form of physical passing of the boundaries of the property by X
personally, for neither inciting a dog to enter the land nor the mere placing of
some object on or over the property is sufficient to qualify as an “entry”. X
must therefore be personally present on the property.115 Theoretically the mere
placing by X of his foot on the land or building may constitute an “entry”, but
in practice such cases will be – or ought to be – disregarded due to the oper-
ation of the principle of de minimis non curat lex (the law does not concern
itself with trifles).
5 The land or building or part of the building This requirement of the
crime is largely self-explanatory. A caravan also qualifies as a “building” for
the purposes of this crime.116
It is noticeable that every time the word “building” appears in the section the
words “or part of a building” are added. There is a specific reason for this. A
building may consist of different parts or entities, and X may have obtained
permission or have a lawful reason to enter a certain part of the building only.
X may, for example, have permission to enter only a certain flat in a block of
flats, and not the other flats in the same building.
6 Unlawfulness The entry or remaining upon the property must be unlawful.
The conduct concerned will be lawful if: (i) permission has been granted to enter
or to be on the property; (ii) X has a lawful reason for entering or being on the
property; or (iii) there is another ground of justification, such as necessity, for
his conduct. Each of these possibilities will briefly be considered.

________________________

114 Badenhorst 1960 3 SA 563 (A) 566H–567A; Brown 1978 1 SA 305 (NC) 308C.
115 Brown supra 308.
116 Mavungu 2009 1 SACR 425 (T) 434c–e.
 CRIMES RELATING TO DAMAGE TO PROPERTY 553

(a) Consent (permission) It is important to identify the person whose per-

mission for the conduct must be absent in order to secure a conviction. The sec-
tion draws a distinction between a land or building that is lawfully occupied and
a land or building that is not lawfully occupied. This is in fact another way in
which the crime created in the section can be divided into two distinct crimes.117
In the case of the former, the person whose consent must be absent is the lawful
occupier of the property concerned. In other words, in this type of case the per-
mission of the owner of the property is not sufficient,118 unless the owner and
the occupier happen to be the same person. In the latter type of case, the person
whose consent must be absent is the owner or person in charge of the land or
building or part of the building. It is essential for the prosecution to allege and
prove that X did not have the permission of the particular class of persons men-
tioned above.119
The courts regard the lawful occupier of land as somebody “who, though not
the owner, has the same rights of residence on and control over the property as
the owner would have”.120 A tenant is a good example of a lawful occupier of
property. The owner may, of course, himself be the lawful occupier of the prop-
erty. Subsection (2) of section 1 specifically provides that for the purposes of
subsection (1) the expression “lawful occupier” in relation to a building or part
of a building does not include a servant of the lawful occupier of the land on
which the building is situated.
Consent once given may always be withdrawn, in which case X must leave
the property. Consent may also be given tacitly:121 if the occupier or owner is
aware of the fact that X for some period regularly enters the property but fails
to object to his presence, such failure may, depending upon the circumstances,
be interpreted as tacit consent for X to enter or be on the property.
(b) ”Lawful reason” X does not commit the crime if he has lawful reason to
enter or be on the land or building or part of the building. Section 1(1A) of the
Act provides that a person who is entitled to be on land in terms of the Extension
of Security of Tenure Act 62 of 1997, shall be deemed to have lawful reason to
enter and be upon such land.
There are also other situations not mentioned in the Act in which a person
has a “lawful reason” to enter or be upon land or a building or part thereof. In
everyday life there are a number of instances in which an entry upon another’s
property is not regarded as unlawful. Thus, X may have a right by virtue of some
statute, by-law or regulation to enter property, as where X is a police official
who enters property in order to arrest somebody, to search the property in terms
of a search warrant lawfully issued, or to otherwise investigate a crime; where
X is a sheriff who enters property in order to serve a summons or other legal
document; or where he is a municipal official who enters property in order to
read an electricity or water meter. X may also have a right of entry if he is a
person who delivers some article at the request of somebody on the property. X
________________________

117 Molele 1960 1 PH K61 (O).

118 Mdunge 1962 2 SA 500 (N).
119 Molele 1960 1 PH K61 (O); Mdunge supra 502D; Brown 1978 1 SA 305 (NC) 308A.
120 Lombard 1948 2 SA 31 (T); Davids 1966 1 PH H26 (N).
121 Molelekeng 1992 1 SA 604 (T) 606h.
554 CRIMINAL LAW

may have a right of entry by virtue of a contract between himself and the owner
or occupier of the property, as where he is a servant of the occupier. An entry
onto premises made with the very purpose of obtaining permission to be upon
the property is deemed to be an entry with a lawful reason.122
(c) Further possible grounds of justification X may conceivably rely on
necessity, as where he flees into a building without the permission of the owner
or occupier because he is being attacked by other people or by an animal; or on
presumed consent (negotiorum gestio), as where he enters premises without
permission in order to perform some task for the benefit of an absent owner or
occupier, such as extinguishing a fire or fixing a leaking tap; or even on private
defence, as where X is a passer-by who witnesses an unlawful attack by Z upon
Y on the premises and rushes into the premises to render assistance to X.
7 Intention The form of culpability required for this crime is intention.123 X
must know or foresee that he is entering property belonging to somebody else;
that he has no permission from the occupier or owner of the property, as the
case may be, to enter or remain on the property; that if permission has been
granted, that the person who granted it is lawfully empowered to do so; and that
he has no lawful reason for entering or remaining on the property. If X honestly
thinks that the owner or occupier would not object to his entering or remaining
on the premises, he lacks the necessary awareness of unlawfulness and there-
fore intention.124
8 Punishment The punishment for the crime is a fine or imprisonment for a
period not exceeding two years or both such fine and such imprisonment.125 If
the provisions of the Adjustment of Fines Act 101 of 1991 are taken into
account, the maximum fine that may be imposed is R120 000 × 2 = R240 000
in the case of a Magistrate’s Court which is not a Regional Court, and in the
case of a Regional Court R600 000 × 2 = R1.2 million.

________________________

122 Davids 1966 1 PH H26 (N) 52. The courts have on more than one occasion held that if
X believes (or, what is substantially the same, if he has good reason for believing) that
the owner or occupier will not object to his entering or remaining on the property, he
has a lawful reason as envisaged in the section. See Jakwane 1944 OPD 139 142–143;
Ramakau 1959 4 SA 642 (O) 644. It is submitted that this view of the law is incorrect.
In these cases the courts confuse the element of “lawful reason”, which forms part of
the definition of the proscription, with the quite distinct requirement of intention, which
includes awareness of unlawfulness. X’s subjective belief has nothing to do with the
objective requirement of lawful reason.
123 Venter 1961 1 SA 363 (T); Ziki 1965 4 SA 14 (E) 15G–H.
124 Davids 1966 1 PH H26 (N) 52.
125 S 2 of the Act.
 SCHEDULES

SCHEDULE A
CONSTRUCTION OF CRIMINAL LIABILITY
Note:
(1) The diagram below represents a standard crime. There are exceptions to
this standard model. Strict liability crimes, for example, dispense with the re-
quirement of culpability.
(2) The reason why compliance with the principle of legality is indicated
with a dotted line is the following: if a person’s liability for a well-known crime
such as murder, theft or rape has to be determined, it is so obvious that such a
crime is recognised in our law that it is usually a waste of time to enquire
whether there has been compliance with the requirement of legality.
(3) The reason why the box containing the words “Compliance with defin-
itional elements” is further subdivided with a dotted line is the following: crimes
may according to their definitional elements be classified or subdivided in differ-
ent ways (supra III A 9). The purpose is merely to incorporate into the diagram
the subdivision into formally and materially defined crimes, since this sub-
division shows the place within the general system of criminal liability of the
requirement of causation.

555
 556

Criminal liability
is based on:

Compliance with + 1 + 2 + 3 + 4
principle of legality (Voluntary) Compliance with Unlawfulness Culpability
Conduct definitional elements

Commission OR Omission Criminal + Forms of

capacity culpability

Ability to Ability to conduct Intention OR Negligence

Formally Materially defined appreciate + oneself in
OR wrongfulness of accordance with
defined crimes crimes
(which require conduct appreciation of
causation) wrongfulness of Unconscious Conscious
SCHEDULES

OR
conduct negligence negligence

Knowledge + Will
Factual + Legal
causation causation
of + of definitional + of
act elements unlawfulness
Conditio sine Policy
qua non considerations

Dolus Dolus Dolus

directus OR indirectus OR eventualis
 CRIMINAL LAW 557

SCHEDULE B
TABLE OF DEFENCES AND THEIR EFFECT
Note: This table does not contain a complete list of every conceivable defence
which an accused can raise when charged with a crime. Every crime has differ-
ent definitional elements, and it is impossible here to set out every possible de-
fence based upon the absence of a particular definitional element (eg “premises”
in housebreaking, “property” in theft, or “judicial proceedings” in perjury). The
only defences included in this table are those based upon or related to the
absence of a general prerequisite for liability in terms of the general principles
of criminal law. The purpose is to point out the relationship between a particu-
lar defence and the corresponding general prerequisite for liability. Defences of
a procedural nature, or related to the law of evidence, as well as the general
defence known as an alibi, have been left out for obvious reasons. If in the third
column there is an asterisk after the verdict “not guilty” it means that a court
would not readily find an accused not guilty, but only if the circumstances were
fairly exceptional.

General prerequisite for Verdict if defence

Defence
liability placed in issue is successful
Automatism due to Conduct Not guilty*
involuntary conduct not
attributable to mental
illness
Impossibility Voluntary conduct in Not guilty
form of omission
Act does not comply Requirement that Not guilty
with definitional conduct should comply
elements with definitional
elements
Act not a sine qua non Requirement of Not guilty (but possibly
for result, or not an causation guilty of a less serious
adequate cause of formally defined crime,
resultant condition, or such as assault)
novus actus interveniens
Grounds of justification, Unlawfulness Not guilty
such as private defence,
consent, necessity
Youth Criminal capacity Not guilty
Mental abnormality, Criminal capacity Not guilty, but X
including automatism usually ordered to be
due to mental illness detained in psychiatric
hospital or prison
continued
558 SCHEDULES

General prerequisite for Verdict if defence

Defence
liability placed in issue is successful
Intoxication Conduct Not guilty* of crime
charged, but guilty of
contravening s 1 of Act
1 of 1988
Criminal capacity Not guilty* of crime
charged, but guilty of
contravening s 1 of Act
1 of 1988
Intent required for Not guilty, but usually
crime charged guilty of less serious
crime which is a
competent verdict on
main charge
Provocation Intent required for Guilty, but measure of
crime charged provocation may serve
as ground for mitigation
of punishment
If charged with crime Intention Not guilty (at least on
requiring intent: result main charge – possibly
or circumstances not guilty of less serious
foreseen crime which is a
competent verdict on
main charge)
If charged with crime Intention Not guilty (at least on
requiring intent: main charge – possibly
mistake, either of fact or guilty of less serious
of law crime)
If charged with crime Negligence Not guilty
requiring negligence:
conduct was reasonable,
ie, did not deviate from
conduct to be expected
of reasonable person in
the circumstances; OR
unlawful result or
circumstances not
foreseeable
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ROBINSON: If the name of the author (Robinson) is immediately followed by
a page number, the reference is to Robinson PH, Criminal Law Defences,
1984. If the name of the author is followed by the word Fundamentals, it is a
reference to Robinson, PH, Fundamentals of Criminal Law, 1988.
ROXIN C, Strafrecht. Allgemeiner Teil, 4th ed, 2006.
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SAIRR SURVEY: See SOUTH AFRICAN INSTITUTE OF RACE
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SCHMIDHÄUSER E, Strafrecht. Allgemeiner Teil. Lehrbuch, 2nd ed, 1975.
SCHOEMAN (ed), Responsibility, Character and the Emotions, 1987.
SCHÖNKE A and SCHRÖDER H, Strafgesetzbuch. Kommentar, 27th ed, 2006.
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STRAUSS SA, Doctor Patient and the Law. A Selection of Practical Issues, 3rd
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564 CRIMINAL LAW

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D, Canadian Criminal Law. A Treatise, 1982. A reference to Stuart Charter
Justice is a reference to Stuart D, Charter Justice in Canadian Criminal Law,
1991.
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TRECHSEL S, Schweizerisches Strafrecht Teil I, 1998.
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VAN DER LINDEN J, Regtsgeleerd, Practicaal en Koopmans Handboek, 1806,
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VAN DER MERWE DP, Computers and the Law, 2nd ed, 2000.
VAN DER WALT and MIDGLEY JR, Delict. Principles and Cases, 2nd ed,
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VAN DER WESTHUIZEN J (ed), Crimes of Violence in South Africa, 1982.
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Leeuwen S, Censura Forensis, 1741. A reference to Van Leeuwen RHR is a
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ZOESIUS H, Commentarius ad Digestorum seu Pandectarum, 4th ed, 1718.

LEGAL PERIODICALS
The following abbreviations refer to the following legal periodicals. Periodicals
not contained in this list are referred to by their full titles in the footnotes.
CILSA — Comparative and International Law Journal of South Africa.
JJS — Journal for Juridical Science.
SACC — South African Journal of Criminal Law and Criminology.
SACJ — South African Journal of Criminal Justice.
SALJ — South African Law Journal.
THRHR — Tydskrif vir Hedendaagse Romeins-Hollandse Reg.
TSAR — Tydskrif vir die Suid-Afrikaanse Reg.
 MOST IMPORTANT LEGISLATION
DISCUSSED

Note: Only legislation discussed in some detail is listed hereunder

Year Act No Section Title Page
1935 46 113 General Law Amendment Act 432–433
1955 56 319(3) Criminal Procedure Act 336–338
1955 62 36 General Law Amendment Act 515–519
1955 62 37 General Law Amendment Act 519–521
1956 17 18 Riotous Assemblies Act 286, 289
1956 50 1 General Law Amendment Act 502–507
1959 6 1 Trespass Act 551–554
1963 16 9 Justices of the Peace and
Commissioners of Oaths Act 338
1977 51 49 Criminal Procedure Act 129–134
1977 51 51 Criminal Procedure Act 339
1977 51 77–79 Criminal Procedure Act 164–172
1977 51 252A Criminal Procedure Act 140–143
1977 51 332 Criminal Procedure Act 245–248
1982 74 1 Intimidation Act 455–458
1988 1 1 Criminal Law Amendment Act 224–229
1992 149 Drugs and Drugs Trafficking Act 420–426
1993 129 82 Third General Law Amendment Act 550–551
1996 108 35 Constitution of the Republic of 38–48
South Africa
continued

567
568 CRIMINAL LAW

Year Act No Section Title Page

1997 105 51 Criminal Law Amendment Act 356–358,
440–441,
511–512
1998 111 115, 117 Correctional Services Act 339–340
2000 60 3, 4(1), 90 Firearms Control Act 426–431
2000 60 120(6) Firearms Control Act 458–460
2004 12 Corruption Act 401–417
2007 32 Criminal Law (Sexual Offences 341–392
and Related Matters) Amendment
Act
2008 75 7, 11 Child Justice Act 173–175
 TABLE OF CASES

PAGE
A
A 1962 4 SA 679 (E) ..................................................................................................... 379
A 1971 2 SA 293 (T) ..................................................................................... 465, 466, 467
A 1991 2 SACR 257 (N) ................................................................................. 60, 464, 465
A 1993 1 SACR 600 (A) ............................................... 257, 268, 366, 448, 449, 463, 465
Abrahams 1983 1 SA 137 (A) ....................................................................................... 210
Abrahams 1998 2 SACR 655 (C) .................................................................. 543, 544, 545
Adams (1903) 20 SC 556 ...................................................................................... 444, 445
Adams 1911 CPD 863 ........................................................................................... 396, 398
Adams 1959 1 SA 646 (Sp Ct) ...................................................................... 289, 302, 306
Adams 1981 1 SA 187 (A) ............................................................................................ 115
Adams 1986 4 SA 882 (A) ........................................................ 68, 70, 208, 242, 248, 421
Adams 1993 1 SACR 330 (C) ....................................................................................... 214
Adcock 1948 2 SA 818 (C) ............................................................................................ 61
Adendorff (1884) 3 EDC 403 ........................................................................................ 334
Affordable Medicines Trust v Minister of Health 2006 3 SA 247 (CC) ......................... 43
African Bank of SA Ltd 1990 2 SACR 585 (W) ........................................... 525, 529, 531
Afrikaanse Pers-Publikasie (Edms) Bpk v Mbeki 1964 4 SA 618 (A) ......................... 328
Agliotti 2011 2 SACR 437 (GSJ) ...................................... 87, 90, 124, 277, 287, 288, 289
Agmat 1965 2 SA 874 (C) ............................................................................................. 281
Ah Chee 1912 AD 231 .................................................................................................. 333
Aitken 1988 4 SA 394 (C) ............................................................................................. 488
Aldridge 1991 1 SACR 611 (C) .................................................................................... 142
Alexander 1965 2 SA 818 (C) ....................................................................................... 287
Alfeus 1979 3 SA 145 (A) ............................................................................. 115, 118, 119
Allen (1872) LR 1 CC 367 ............................................................................................ 394
Amalgamated Beverage Industries Natal (Pty) Ltd v City Council of Durban
1994 1 SACR 373 (A)................................................................ 257, 259, 260, 262, 263
Amalgamated Beverage Industries Natal (Pty) Ltd v Durban City Council
1992 2 SACR 181 (N)................................................................................................ 257
Ambard v Attorney-General of Trinidad [1936] 1 All ER 704 (PC) ........................... 326
Amonda Ayar (1905) 26 NLR ....................................................................................... 332
Anderson 1962 2 SA 286 (O) ........................................................................................ 536
Andhee 1996 1 SACR 419 (A) ...................................................................................... 329
Andreas 1989 2 PH H35 (SWA) ................................................................................... 137
Andries 1958 2 SA 669 (E) ........................................................................................... 549

569
570 CRIMINAL LAW

PAGE
Appleton 1982 4 SA 829 (ZS) ....................................................................................... 212
April (1894) 4 EDC 177 ................................................................................................ 332
Arbee 1956 4 SA 438 (A) .............................................................................................. 513
Arends 1946 NPD 441 ........................................................................................... 434, 435
Arenstein 1964 1 SA 361 (A) ................................................................................ 259, 260
Arenstein 1967 3 SA 366 (A) ................................................................................ 259, 260
Argus Printing and Publishing Co Ltd v Esselen’s Estate 1994 2 SA 1 (A) 29 .... 316, 323
Armstrong 1917 TPD 145 ............................................................................................. 530
Armugan 1956 4 SA 43 (N)........................................................................................... 518
Attia 1937 TPD 102 ....................................................................................... 491, 500, 501
Attorney-General v Baker 1929 TPD 996 ..................................................................... 316
Attorney-General v Crockett 1911 TPD 893 ......................................................... 316, 322
Attorney-General v Grieve 1934 TPD 187 ...................................................................... 62
Aube 2007 1 SACR 655 (W) ................................................................................. 518, 519
Augustine 1986 3 SA 294 (C) ........................................................................... 44, 45, 513

B
B 1955 3 SA 494 (D) ............................................................................................. 434, 435
B 1956 3 SA 363 (E) ..................................................................................................... 287
B 1958 1 SA 199 (A) ............................................................................. 279, 280, 281, 284
B 1985 2 SA 120 (A) ................................................................................................. 19, 20
B 1994 2 SACR 237 (E) .......................................................................................... 60, 449
B and C 1949 1 PH H74 (T) .......................................................................................... 433
B and C 1949 2 SA 582 (T) ................................................................................... 433, 434
Baartman 1983 4 SA 393 (NC) ..................................................................................... 235
Bacela 1988 2 SA 665 (E) ............................................................................................. 337
Badenhorst (1900) 21 NLR 227 ............................................................................ 302, 303
Badenhorst 1960 3 SA 563 (A) ..................................................................... 543, 549, 552
Bailey 1981 4 SA 187 (N) ..................................................................................... 210, 256
Bailey 1982 3 SA 772 (A) ..................................................... 116, 117, 151, 152, 153, 256
Balitane 1956 3 SA 634 (E) ........................................................................................... 519
Banda 1989 4 SA 519 (B) ...................................................................................... 301, 302
Banda 1990 3 SA 466 (B) ........................................ 59, 136, 257, 300, 303, 304, 305, 306
Banur Investments (Pty) Ltd 1969 1 SA 231 (T) .................................................. 246, 262
Banur Investments (Pty) Ltd 1970 3 SA 767 (A) .................................................. 533, 534
Barber 1937 EDL 79 ...................................................................................................... 541
Barketts Transport (Pty) Ltd 1986 1 SA 706 (C) .......................................................... 210
Barnard 1985 4 SA 431 (W) .......................................................................................... 153
Barnard v SANTAM Bpk 1999 1 SA 202 (SCA) ......................................................... 217
Barnes 1990 2 SACR 485 (N) ............................................................... 255, 259, 260, 271
Barney’s Super Service Station (Pty) Ltd 1956 4 SA 107 (T) ...................................... 246
Basson 2000 1 SACR 1 (T) ................................................................................... 287, 290
Bates 1903 TS 513 ......................................................................................................... 450
Baxter 1929 EDL 189 .................................................................................................... 334
Bazi 1943 EDL 222 ....................................................................................................... 501
Bazzard 1992 1 SACR 302 (NC)........................................................... 327, 328, 330, 331
Beahan 1992 1 SACR 307 (ZS)..................................................................... 263, 264, 286
Beja 1978 1 SA 395 (E) ................................................................................................. 424
Bekker 1956 2 SA 279 (A) .................................................................................... 327, 331
Bell 1963 2 SA 335 (N) ......................................................................................... 531, 534
Benator 1984 3 SA 588 (Z) ........................................................................................... 325
Bengu 1965 1 SA 298 (N) ............................................................................................. 444
Benjamin 1980 1 SA 950 (A) ................................................................................ 454, 508
 TABLE OF CASES 571

PAGE
Bennet and Co (Pty) Ltd 1941 TPD 194 ....................................................................... 246
Benson 1914 AD 357..................................................................................................... 318
Bergh 1975 3 SA 359 (O) .............................................................................................. 481
Bergh 2006 2 SACR 225 (N)................................................................................. 453, 454
Berliner 1966 4 SA 535 (W) .......................................................................................... 493
Bernardus 1965 3 SA 287 (A) ............................................................... 150, 203, 225, 442
Bertinotti 1961 1 PH H79 (F) ........................................................................................ 489
Bester (1900) 21 NLR 237 ............................................................................................ 304
Bester 1961 2 SA 52 (F) ................................................................................................ 528
Bester 1966 4 SA 432 (RA) ........................................................................................... 335
Bester 1971 4 SA 28 (T) ........................................................................................ 140, 448
Bethlehem Municipality 1941 OPD 230 ......................................................................... 40
Beukes 1988 1 SA 511 (A) .................................................................................... 183, 189
Beukman 1950 4 SA 261 (O) ........................................................................ 332, 333, 334
Beyers 1968 3 SA 70 (A)............................................................................................... 325
Bezuidenhout 1971 4 SA 32 (T) ............................................................................ 396, 397
Bezuidenhout 1979 3 SA 1325 (T) ................................................................................ 210
Bhardu 1945 AD 813 ..................................................................................................... 500
Bhulwana 1995 2 SACR 108 (CC) ................................................................................ 507
Bhulwana 1995 2 SACR 748 (CC) 337, 424, 456
Binns 1961 2 SA 104 (T) ......................................................................................... 67, 421
Binta 1993 2 SACR 553 (C) .................................................................................. 329, 330
Bisset 1990 1 SACR 292 (ZS) ....................................................................................... 335
Blaauw 1934 SWA 3 ..................................................................................................... 379
Blaauw 1999 2 SACR 295 (W) ..................................................................................... 344
Blanche 1969 2 SA 359 (W) .......................................................................... 471, 472, 474
Blank 1995 1 SACR 62 (A) ............................................................................................. 20
Blauw 1972 3 SA 83 (C) ......................................................................................... 65, 423
Bloem 1993 PH H16 (NC) ............................................................................................ 518
Blum 1960 2 SA 497 (E) ............................................................................................... 487
Bochris Investments (Pty) Ltd 1988 1 SA 861 (A) ....................................................... 224
Bodigelo 1982 3 SA 568 (NC) ...................................................................................... 424
Boers (1900) 21 NLR 116 ............................................................................................. 303
Boesak 2000 1 SACR 633 (SCA) .......................................................................... 484, 485
Bokane 1975 1 PH H101 (NC) ...................................................................................... 454
Bokane 1975 2 SA 186 (NC) ......................................................................................... 454
Bolus 1966 4 SA 575 (A) ...................................................................................... 513, 514
Booth Road Trading Co (Pty) Ltd 1947 1 SA 34 (N).................................................... 246
Booysen 1977 2 PH H148 (C) ............................................................................... 138, 139
Boshoff 1962 3 SA 175 (N) ........................................................................................... 516
Botes 1945 NPD 43 ....................................................................................... 379, 380, 381
Botes 1966 3 SA 606 (O)............................................................................................... 105
Botes v Van Deventer 1966 3 SA 182 (A) .................................................................... 227
Botha 1953 4 SA 666 (C) .............................................................................................. 325
Botha 1959 1 SA 547 (O) .............................................................................................. 286
Botha 1960 2 SA 147 (T)............................................................................................... 545
Botha 1982 2 PH H112 (E) ............................................................................................ 354
Botha 1990 SACJ 231 ................................................................................................... 494
Bougarde 1954 2 SA 5 (C) .................................................................................... 411, 531
Bourke 1916 TPD 303 ................................................................................................... 235
Bowden 1957 3 SA 148 (T) ........................................................................... 539, 540, 541
Bradbury 1967 1 SA 387 (A)................................................................................. 118, 119
Brand 1960 3 SA 637 (A) .............................................................................................. 500
Brande 1979 3 SA 371 (D) ............................................................................................ 524
572 CRIMINAL LAW

PAGE
Brereton 1971 1 SA 489 (RA) ............................................................................... 461, 465
Bresler 2002 2 SACR 18 (C) ................................................................. 315, 316, 320, 322
Brett and Levy 1915 TPD 53 ......................................................................................... 500
Brick 1973 2 SA 571 (A) ..................................................................................... 65, 66, 70
Bridges v California (1941) 314 US 252 ............................................................... 324, 325
Britz 1949 3 SA 293 (A) ................................................................................................ 135
Brown 1978 1 SA 305 (NC) .................................................................................. 552, 553
Buda 2004 1 SACR 9 (T) .............................................................................. 187, 253, 255
Bugwandeen 1987 1 SA 787 (N) ........................................................................... 466, 467
Bull 2001 2 SACR 674 (SCA)....................................................................................... 172
Buren Uitgewers (Edms) Bpk v Raad van Beheer oor Publikasies
1975 1 SA 379 (C) ..................................................................................................... 434
Burger 1959 2 SA 110 (T) ............................................................................................... 84
Burger 1968 4 SA 877 (A)............................................................................................. 224
Burger 1969 4 SA 292 (SWA)....................................................................................... 526
Burger 1975 2 SA 601 (C) ....................................... 45, 225, 327, 328, 329, 330, 331, 442
Burstein 1978 4 SA 699 (T)........................................................................................... 491
Bushinelo 1982 3 SA 456 (T) ........................................................................................ 425
Bushula 1950 4 SA 108 (E) ........................................................................................... 335
Busuku 2006 1 SACR 96 (E)......................................................................................... 339
Butelezi 1925 AD 160 ................................................................................................... 253
Butelezi 1952 1 SA 511 (O) .......................................................................................... 337
Butelezi 1960 1 SA 284 (N) .......................................................................................... 318
Butelezi 1963 2 PH H238 (D) ....................................................................................... 195
Buthelezi 1961 4 SA 376 (N) ........................................................................................ 544

C
C 1952 4 SA 117 (O) ............................................................................. 125, 126, 354, 355
Calitz 1990 1 SACR 119 (A) ......................................................................................... 155
Calitz 1992 2 SACR 66 (O) ........................................................................................... 528
Cameron 2005 2 SACR 279 (SCA) 1 .............................................................................. 69
Campbell 1991 1 SACR 503 (Nm)................................................................................ 529
Campher 1987 1 SA 940 (A) ................................. 155, 156, 158, 159, 164, 166, 208, 252
Campos 2002 1 SACR 233 (SCA) ................................................................................ 189
Canca 2000 2 SACR 284 (E) ......................................................................................... 318
Canestra 1951 2 SA 317 (A) .................................................................................... 61, 118
Cape Town and Districts Waterworks Co Ltd v Executors of Elders (1890) 8 SC....... 435
Cape Treason Trials reported in 1901 (vol 18) CLJ 164 ............................................... 303
Carmichele v Minister of Safety and Security 2002 1 SACR 79 (CC) ........................... 59
Carse 1967 2 SA 659 (C) ....................................................................................... 332, 333
Cassiem 2001 1 SACR 489 (SCA) .......................................................................... 19, 500
Cassimjee 1989 3 SA 729 (N) ............................................................................... 328, 329
Cele 1958 1 SA 144 (N) ........................................................................................ 312, 313
Cele 1993 2 SACR 52 (N) ............................................................................. 483, 488, 491
Cele 2009 1 SACR 59 (N) ............................................................................................. 457
Cetwayo 2002 2 SACR 319 (E)..................................................................................... 544
Chaitezvi 1992 2 SACR 456 (ZS) ................................................................................. 532
Chalala 1947 3 SA 62 (O) ............................................................................................. 547
Charlie 1916 TPD 367 ................................................................................................... 544
Chaulk (1991) ICRR (2d) 1 (SCC) ................................................................................ 169
Cheeseborough 1948 3 SA 756 (T) ............................................................................... 481
Chenjere 1960 1 SA 473 (FC) ......................................................................................... 60
Chetty 1972 4 SA 324 (N) ............................................................................................. 528
 TABLE OF CASES 573

PAGE
Chicani 1921 EDL 123 .................................................................................................. 514
Chimbamba 1977 4 SA 803 (RA) ................................................................................. 258
Chinyerere 1980 2 SA 576 (RA) ........................................................................... 264, 544
Chipangu 1939 AD 266 ................................................................................................. 280
Chipo 1953 3 SA 602 (R) .............................................................................................. 461
Chipo 1953 4 SA 573 (A) .............................................................................................. 461
Chorle 1945 AD .................................................................................................... 401, 408
Chretien 1981 1 SA 1097 (A) ................................................ 45, 164, 233, 235, 237, 238,
239, 242, 244, 246, 248, 453
Christian 1924 AD 101 .......................................................................................... 301, 304
Christian Education South Africa v Minister of Education 2000 4 SA 757 (CC) ......... 138
Church 1935 OPD 70..................................................................................................... 129
Churchill 1959 2 SA 575 (A)......................................................... 191, 395, 397, 398, 399
Claasen 1979 4 SA 460 (ZS) ................................................................................... 60, 268
Claassen 1997 1 SACR 675 (C) ...................................................................................... 44
Claassens 1959 3 SA 292 (T) ........................................................................................ 313
Claassens 1992 2 SACR 434 (T) ........................................................... 211, 214, 233, 260
Clark 1914 TPD 50 ........................................................................................................ 398
Clark 1958 3 SA 394 (A) 400 ........................................................................................ 318
Clarke 1961 R and N 652 .............................................................................................. 312
Clarke v Hurst 1992 4 SA 630 (D) ...................................................................... 74, 97, 98
Cleminshaw 1981 3 SA 685 (C) ................................................................................ 65, 67
Close Settlement Corporation 1922 AD 294 ................................................................... 62
Coertzen 1929 SWA 20 ................................................................................................. 524
Coetzee 1958 2 SA 8 (T) ....................................................................................... 546, 548
Coetzee 1974 3 SA 571 (T) ........................................................................................... 261
Coetzee 1993 2 SACR 191 (T) ...................................................................................... 436
Coetzee 1997 1 SACR 379 (CC) ........................................... 214, 247, 248, 258, 337, 507
Cohn (1985) 15 CCC (3d) 150 ...................................................................................... 320
Colgate-Palmolive Ltd 1971 2 SA 149 (T).................................................................... 210
Collett 1978 3 SA 206 (RA) .......................................................................... 124, 127, 139
Collett 1991 2 SA 854 (A) ............................................................................. 208, 422, 423
Congo 1962 3 SA 988 (N) ............................................................................................. 424
Cooke 1939 TPD 69 ...................................................................................................... 434
Cooper 1976 2 SA 875 (T) ............................................................................ 287, 288, 289
Coovadia 1957 3 SA 611 (N) ........................................................................................ 536
Cornick 1957 2 PH K140 (C) ........................................................................................ 397
Correia 1958 1 SA 533 (A) 544A .................................................................................. 513
Counter 2000 2 SACR 241 (T) .................................................................................. 85, 91
Counter 2003 1 SACR 143 (SCA)............................................................................. 87, 89
Couvaras 1946 OPD 392 ....................................................................................... 247, 248
Cowan 1903 TS 798 ...................................................................................................... 329
Cronje 1955 3 SA 319 (SWA) ....................................................................................... 322
Crossberg 2008 2 SACR 317 (SCA) ............................................................................. 442
Croucamp 1949 1 SA 377 (A) ............................................................................... 280, 514
Crowe 1904 TS 581 ....................................................................................................... 534
Cumoya 1905 TS 402 .................................................................................................... 549
Cunningham 1996 1 SACR 631 (A) ............................................................ 54, 56, 57, 168
Cupido 1939 1 PH H69 (C) ........................................................................................... 335
Cupido 1975 1 SA 537 (C) .................................................................................... 548, 549
Curtis 1926 CPD 385 ..................................................................................... 366, 463, 467
574 CRIMINAL LAW

PAGE
D
D 1963 3 SA 263 (E) ............................................................................................. 123, 125
D 1966 4 SA 267 (D) ..................................................................................................... 273
D 1969 2 SA 591 (RA) .................................................................................................. 126
D 1972 3 SA 202 (O) ..................................................................................................... 379
D 1995 2 SACR 502 (C) ................................................................................................ 245
D 1998 1 SACR 33 (T) .................................................................................. 125, 362, 368
Dalindyebo 1980 3 SA 1049 (Tk) 1054 ........................................................................ 233
Damascus 1965 4 SA 598 (R) ............................................................................... 115, 119
Dames 1951 2 PH H140 (C) .......................................................................................... 444
Dane 1957 2 SA 472 (N) ....................................................................................... 140, 540
Daniels 1938 TPD 312........................................................................... 462, 464, 465, 466
Daniels 1963 4 SA 623 (E) ............................................................................................ 329
Daniëls 1983 3 SA 275 (A) ......................................... 81, 83, 85, 87, 88, 89, 92, 195, 258
Danster 1976 3 SA 668 (SWA............................................................................... 140, 425
Davids 1966 1 PH H26 (N) ................................................................................... 553, 554
Davies 1928 AD 165 ..................................................................................................... 536
Davies 1956 3 SA 52 (A)................................................. 77, 276, 281, 282, 283, 295, 510
Dawood 1972 3 SA 825 (N) ............................................................................................ 91
Dayizana 1989 1 SA 919 (E) ......................................................................................... 500
De Beer 1929 TPD 104.................................................................................................. 129
De Beer 1940 TPD 268.......................................................................................... 533, 534
De Blom 1977 3 SA 513 (A) ........... 70, 134, 164, 208, 210, 211, 212, 214, 215, 233, 259
De Bruin 1975 3 SA 56 (T) ........................................................................................... 129
De Bruyn 1968 4 SA 498 (A) ........................................................................................ 188
De Bruyn 1992 2 SACR 574 (Nm)................................................................................ 145
De Jager 1917 CPD 558 .................................................................................................. 61
De Jager 1965 2 SA 616 (A).......................................................................................... 476
De Jager v Attorney-General of Natal (1907) 1904–1907 All ER 1008 (PC)............... 301
De Kock 1997 2 SACR 171 (T) ...................................................................................... 19
De Oliveira 1993 2 SACR 59 (A).......................................... 112, 113, 178, 188, 207, 208
De Reuck v DPP 2003 2 SACR 445 (CC) ................................................................. 62, 70
De Ruiter 1957 3 SA 361 (A) ........................................................................................ 488
De Swart 1948 1 PH H49 (C) ........................................................................................ 481
De Wet 1915 OPD 157 .......................................................................................... 304, 305
Deale 1960 3 SA 846 (T) ............................................................................................... 530
Deetlefs 1953 1 SA 418 (A) .................................................................................. 524, 526
Del Ré 1990 1 SACR 392 (W) ...................................................................................... 257
Dema 1947 1 SA 599 (E)............................................................................................... 432
Desai 1997 1 SACR 38 (W) .................................................................................. 142, 145
Dettbarn 1930 CPD 188................................................................................................. 267
Dhlamini 1931 1 PH H57 (T) ........................................................................................ 450
Dhlamini 1943 TPD 20 .................................................................................................. 533
Dhlamini 1955 1 SA 120 (T) ........................................................................................... 55
Dhlamini 1958 4 SA 211 (N)......................................................................................... 325
Dhlamini 1975 2 SA 524 (D)......................................................................................... 510
Dhlamini (unreported) ................................................................................................... 205
Di Stefano 1977 1 SA 770 (C) ....................................................................................... 257
Dibley v Furter 1951 4 SA 73 (C) ................................................................................. 436
Dick 1969 3 SA 267 (R) ........................................................................................ 294, 295
Dikant 1948 1 SA 693 (O) ..................................................................................... 162, 175
Dimuri 1999 1 SACR 79 (ZH) ...................................................................................... 474
Dingiswayo 1985 3 SA 175 (Ck)................................................................................... 313
Director of Public Prosecutions, Transvaal v Venter 2009 1 SACR 165 (SCA) .......... 171
 TABLE OF CASES 575

PAGE
Director of Public Prosecutions, Western Cape v Prins
2012 2 SACR 183 (SCA) ..................................................................................... 41, 343
Dittmer 1971 3 SA 296 (SWA) ..................................................................................... 541
Dladla 1965 3 SA 146 (T) ............................................................................................. 421
Dladla 1980 1 SA 1 (A) ................................................................................. 180, 181, 189
Dlamini 1984 3 SA 196 (N)................................................................................... 489, 490
Dlepu 1978 3 SA 106 (T) .............................................................................................. 427
Dlomo 1957 2 PH H184 (E) .................................................................................. 487, 539
Dodo 2001 1 SACR 594 (CC) ........................................................... 17, 49, 358, 441, 512
Dohne (1901) 22 NLR 176 ............................................................................................ 304
Dorfling 1954 2 SA 125 (E) .......................................................................................... 493
Dormehl 1966 1 PH H223 (A)............................................................................... 532, 534
Dougherty 2003 2 SACR 36 (W) .......................................................................... 107, 113
Dreyer 1967 4 SA 614 (E) ..................................................................................... 487, 534
Du Plessis 1960 2 SA 642 (T) ................................................................................... 91, 93
Du Plessis 1981 3 SA 382 (A) ....................................................................... 279, 284, 286
Du Preez 1998 2 SACR 133 (C) ............................................................................ 517, 518
Du Toit 1947 3 SA 141 (A) ........................................................................................... 231
Du Toit 1950 2 SA 469 (A) ................................................................................... 333, 338
Du Toit 1974 4 SA 679 (T).................................................................................... 327, 329
Du Toit 1981 2 SA 33 (C) ............................................................. 210, 214, 233, 259, 260
Du Toit 2004 1 SACR 66 (T) ........................................................................................ 289
Duarte 1965 1 PH H83 (T) ............................................................................................ 508
Dube 1991 2 SACR 419 (ZS) ................................................................................ 453, 454
Dube 1994 2 SACR 130 (N) .................................................................................. 279, 282
Dube 2000 1 SACR 53 (N) ............................................................................................ 142
Dube 2010 1 SACR 65 (KZP) ....................................................................... 187, 189, 261
Duffey v Munnik 1957 4 SA 390 (T) ............................................................................ 319
Duma 1970 1 SA 70 (N) ................................................................................................ 221
Dunya 1961 3 SA 644 (O) ............................................................................................. 504
Dyenti 1973 1 PH H4 (C) .............................................................................................. 547
Dyk 1969 1 SA 601 (C) ................................................................................................. 162
Dyonta 1935 AD 52 ....................................................................... 524, 528, 529, 532, 535

E
E 1957 4 SA 61 (G) ....................................................................................................... 291
Eadie 2002 1 SACR 663 (SCA) .................................................... 158, 160, 161, 162, 252
Edward 1992 2 SACR 429 (ZH) ................................................................................... 166
Elbrecht 1977 4 SA 165 (C) .......................................................................................... 509
Els 1972 4 SA 696 (T) ................................................................................................... 234
Els 1986 1 PH H73 (A) .................................................................................................. 471
Endemann 1915 TPD 142 ...................................................................... 304, 309, 310, 311
Eneldoe’s Taxi Service (Pty) Ltd 1966 1 SA 329 (A) ..................................................... 43
Engelbrecht 1966 1 SA 210 (C)..................................................................... 485, 487, 493
Engelbrecht 2005 2 SACR 41 (W) ......................................... 98, 102, 103, 104, 105, 106,
107, 110, 111, 112, 155, 157
Erasmus 1923 AD 73 ............................................................................................. 304, 305
Erasmus 2005 2 SACR 658 (SCA) ........................................................................ 452, 454
Ernst 1963 3 SA 666 (T) ................................................................................................ 410
Eshowe Local Board v Hall 1923 NPD 233 .................................................................. 435
Essack 1963 1 SA 922 (T) ..................................................................................... 516, 517
Evans 1982 4 SA 346 (C) ...................................................................................... 233, 259
Evilio 2012 1 SACR 367 (SGHJ) .................................................................................. 339
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Ex parte die Minister van Justisie: in re S v Van Wyk 1967 1 SA 488 (A) .......... 105, 109
Ex parte Lebowa Development Corporation Ltd 1989 3 SA 71 (T) ............. 411, 523, 531
Ex parte Minister of Justice: in re R v Bhyala 1943 AD 135 ........................................ 336
Ex parte Minister of Justice: in re R v Gesa; R v De Jongh
1959 1 SA 234 (A) ............................................................. 126, 418, 484, 508, 509, 536
Ex parte Minister of Justice: in re R v Maserow 1942 AD 164 .................... 484, 501, 513
Ex parte Minister of Justice: in re R v Nanabhai 1939 AD 427 ............................ 262, 263
Ex parte Minister of Safety and Security: in re S v Walters
2002 2 SACR 105 (CC) ..................................................................................... 129, 131
Ex parte Minister van Justisie: in re S v J en S v Von Molendorff
1989 4 SA 1028 (A) ................................................................................................... 418
Ex parte Minister van Justisie: in re S v SAUK 1992 4 SA 804 (A) ......... 75, 99, 154, 246
Ex parte Minister van Justisie: in re S v Seekoei 1984 4 SA 690 (A) ........................... 510
Ex parte Schwietering 1948 3 SA 378 (O) .................................................................... 302

F
F 1958 4 SA 300 (T) ...................................................................................................... 291
F 1977 2 SA 1 (T) .................................................................................................. 433, 434
F 1982 2 SA 580 (T) ...................................................................................................... 353
F 1983 1 SA 747 (O) ............................................................................................. 471, 474
F 1990 1 SACR 238 (A) ................................................................................................ 366
F v Minister of Safety and Security 2009 2 SACR 639 (C) ............................................ 60
Faison 1952 2 SA 671 (R) ............................................................................. 543, 547, 548
Farndon 1937 EDL 180 ......................................................................................... 418, 419
Feelander 1926 TPD 157 ............................................................................................... 397
Feinberg 1956 1 SA 734 (O) ......................................................................................... 526
Fernandez 1966 2 SA 259 (A) ........................................................................... 53, 60, 225
Ferreira 2004 2 SACR 454 (SCA) ................................................................................. 177
Fick 1945 GWL 11 ........................................................................................................ 450
Filani 2012 1 SACR 508 (ECG) .................................................................................... 428
Fisher 1970 3 SA 446 (RA) ........................................................................................... 508
Flattery [1877] 2 QBD 410 .................................................................................... 126, 354
Folkus 1954 3 SA 442 (SWA) ....................................................................................... 103
Forlee 1917 TPD 52................................................................................................... 40, 41
Fouché 1958 3 SA 767 (T) ............................................................................................ 498
Fouché 1973 3 SA 308 (NC) ......................................................................................... 261
Fouché 1974 1 SA 96 (A) ...................................................................................... 257, 260
Fourie 2001 2 SACR 674 (C) .............................................................................. 74, 97, 98
Foye (1886) 2 BAC 121 ................................................................................................ 327
Francis 1981 1 SA 230 (ZA) ................................................................................. 528, 532
Francis 1994 1 SACR 350 (C) ......................................................................................... 41
Frankfort Motors (Pty) Ltd 1946 OPD 255 ........................................................... 523, 528
Fraser 1928 AD 484....................................................................................................... 498
Fraser 2005 1 SACR 456 (SCA) ........................................................................... 287, 473
Fredericks 1923 TPD 350 ................................................................................................ 41
Friedman 1996 1 SACR 181 (W) ............................................................................ 43, 532
Fuleza 1951 1 SA 519 (A) ............................................................................................. 468

G
G 1938 AD 246 .............................................................................................................. 417
Gaba 1981 3 SA 745 (O) ......................................................................................... 60, 329
Gaba 1985 4 SA 734 (A) ............................................................................................... 301
Gabriel (1908) 29 NLR 750 ........................................................................................... 329
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PAGE
Gani 1957 2 SA 212 (A) ................................................................................ 273, 274, 328
Ganie 1967 4 SA 203 (N) .............................................................................................. 410
Gardener 2011 1 SACR 570 (SCA)............................................................... 523, 525, 531
Gaseb 2001 1 SACR 438 (NmS) ........................................................................... 254, 344
Gathercole 1964 1 SA 21 (A) ................................................................................ 495, 498
Gcabashe 1997 2 SACR 106 (N) ................................................................................... 278
Gebhard 1947 2 SA 1210 (G) ........................................................................................ 482
Gedezi 2010 2 SACR 363 (WCC) ......................................................................... 199, 261
Geffen 1944 CPD 86 ..................................................................................................... 419
Gentle 1983 3 SA 45 (N) ......................................................................................... 67, 423
Gervais 1913 EDL 167 .......................................................................................... 539, 540
Geyer (1900) 17 SC 501 ................................................................................................ 302
Ghoor 1969 2 SA 555 (A) ............................................................................................. 521
Gibson 1979 4 SA 115 (D) ............................................................................ 325, 326, 469
Ginsberg 1934 CPD 166 ................................................................................................ 469
Gokool 1965 3 SA 461 (N) ............................................................................ 268, 418, 419
Golding (1896) 13 SC 210 ..................................................................................... 497, 498
Goldman 1990 1 SACR 1 (A) ......................................................................................... 20
Goliath 1972 3 SA 1 (A) ............................................. 54, 55, 99, 103, 104, 115, 116, 117,
118, 120, 121, 122, 152, 153, 154, 256
Gomas 1936 CPD 225 ................................................................................................... 304
Gondo 1970 2 SA 306 (R) ............................................................................................. 447
Goosen 1989 4 SA 1013 (A) ................................................. 148, 195, 197, 199, 205, 225
Gordon 1962 4 SA 727 (N) ........................................................................................... 438
Gosain 1928 TPD 516 ........................................................................................... 448, 465
Gouws 1975 1 SA 1 (A) ........................................................................................ 401, 412
Gouws 2004 2 SACR 512 (W) ...................................................................................... 166
Govender 2004 2 SACR 389 (SCA) ................................................................................ 60
Govender v Minister of Safety and Security 2001 2 SACR 197 (SCA) ....................... 131
Govender v Minister of Safety and Security 2009 2 SACR 87 (D&C)......................... 105
Government of the Republic of SA v Pentz 1982 1 SA 553 (T) ................................... 536
Gqalowe 1992 2 SACR 172 (E) .................................................................................... 511
Gqomana 2001 2 SACR 28 (C) ..................................................................................... 358
Graham 1975 3 SA 569 (A) ................................................... 481, 482, 495, 496, 498, 499
Greenstein 1977 3 SA 220 (RA) ............................................................ 327, 328, 330, 331
Griessel 1993 1 SACR 178 (O) ..................................................................................... 248
Griffin 1962 4 SA 495 (E) ............................................................................................. 488
Grobler 1918 EDL 124 .................................................................................................. 549
Grobler 1972 4 SA 559 (O) ....................................................................................... 84, 85
Grobler 1974 2 SA 663 (T) ........................................................................................ 58, 84
Groenewald 1941 OPD 194 ........................................................................................... 491
Grotjohn 1970 2 SA 355 (A) ......................................................... 85, 87, 90, 93, 124, 438
Grove-Mitchell 1975 3 SA 417 (A) ............................................................................... 254
Guess 1976 4 SA 715 (A) .............................................................................................. 425
Gumbi 1927 TPD 660 ...................................................................................................... 67
Gweshe 1964 1 SA 294 (R) ........................................................................................... 530

H
Haarmeyer 1971 3 SA 43 (A) .......................................................................................... 83
Hammersma 1941 OPD 39 ............................................................................................ 247
Hammond 2008 1 SACR 476 (SCA)............................................................................. 142
Handcock 1925 OPD 147 .............................................................................................. 127
Hanekom 1979 2 SA 1130 (A) ........................................................................................ 70
578 CRIMINAL LAW

PAGE
Hanna 1937 TPD 236 ............................................................................................ 396, 398
Hans 1998 2 SACR 406 (E)........................................................................................... 459
Harber 1988 3 SA 396 (A)..................................................................... 217, 321, 326, 327
Harber: in re S v Baleka 1986 4 SA 214 (T) ................................................................. 327
Hardy (1905) 26 NLR .................................................................................................... 433
Harlow 1955 3 SA 259 (T) ............................................................................................ 475
Harmse 1944 AD 295 .................................................................................................... 500
Harper 1981 2 SA 638 (D)............................................. 477, 482, 488, 495, 498, 525, 528
Harris 1927 NPD 330 .................................................................................................... 287
Harris 1965 2 SA 340 (A) .............................................................................................. 205
Hartmann 1975 3 SA 532 (C) ................................................................ 124, 189, 437, 439
Hartyani 1980 3 SA 613 (T) .......................................................................................... 234
Harvey 1956 1 SA 461 (T) ............................................................................................ 531
Hassa 1939 NPD 161 ..................................................................................................... 332
Hassen 1956 4 SA 41 (N) .............................................................................................. 517
Hassen 1997 1 SACR 247 (T) ............................................................................... 142, 145
Hattingh 1959 2 PH H355 (O) ....................................................................................... 524
Hayes 1998 1 SACR 625 (O) ................................................................................ 142, 145
Heller 1964 1 SA 524 (W) ............................................................................................. 525
Heller 1971 2 SA 29 (A) ........................................................................ 488, 493, 495, 496
Hendricks 17 CTR 470 .................................................................................................. 481
Hendricks 1938 CPD 456 .............................................................................................. 487
Henkes 1941 AD 143..................................................................................................... 529
Henry 1999 1 SACR 13 (SCA) ........................................................... 54, 56, 57, 168, 168
Hepker 1973 1 SA 472 (W) ........................................................................................... 531
Herbert 10 CTR 424 ...................................................................................................... 448
Hercules 1954 3 SA 826 (A) ................................................................................... 54, 443
Herholdt 1957 3 SA 236 (A) ......................................................................... 488, 493, 499
Herschel v Mrupe 1954 3 SA 464 (A) ................................................................... 224, 225
Heyne 1956 3 SA 604 (A) ............................................................. 524, 528, 529, 530, 532
Heyneke 1959 2 PH H185 (O)....................................................................................... 467
Hibbert 1979 4 SA 717 (D) ............................................................... 87, 93, 124, 189, 437
Hiltonian Society v Crofton 1952 3 SA 130 (A) ........................................................... 139
Hirschhorn 1934 TPD 178 ............................................................................................. 331
Hlapo 1944 OPD 166..................................................................................... 395, 396, 398
Hlatswayo 1980 3 SA 425 (O)....................................................................................... 511
Hlatwayo 1933 TPD 441 ............................................................................................... 284
Hlomza 1983 4 SA 142 (E) ................................................................................... 210, 425
Hlomza 1987 1 SA 25 (A) ............................................................................................. 210
Hlongwana 1975 4 SA 567 (A) ..................................................................................... 242
Hlongwane 1992 2 SACR 484 (N) ................................................................ 280, 543, 547
Hochfelder 1947 3 SA 580 (C) ...................................................................................... 524
Hodgkinson 2010 2 SACR 511 (NG) ............................................................................ 460
Hoffman 1983 4 SA 564 (T) .................................................................................. 210, 473
Hogan 1983 2 SA 46 (W) .............................................................................................. 302
Hoho 2009 1 SACR 276 (SCA)..................................................................... 467, 468, 469
Hoko 1941 SR 211........................................................................................................... 62
Holbrook [1998] 3 All SA 597 (E) .......................................................................... 42, 457
Holliday 1924 AD 250........................................................................................... 166, 235
Holliday 1927 CPD 395................................................................. 462, 463, 464, 465, 466
Holm 1948 1 SA 925 (A)............................................................................................... 303
Hoosain 1990 2 SA 1 (A) ................................................................................................ 65
Hosiosky 1961 1 SA 84 (W) .......................................................................................... 227
Huebsch 1953 2 SA 561 (A) .......................................................................................... 286
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PAGE
Huijzers 1988 2 SA 503 (A) .......................................................................................... 529
Humphreys 2013 2 SACR 1 (SCA) ............................................ 55, 56, 57, 177, 178, 183,
185, 186, 187, 188, 189, 231
Humphries 1957 2 SA 233 (N) ...................................................................................... 459
Hunt 1957 2 SA 465 (N) ................................................................................................ 517
Hutchinson 1990 1 SACR 149 (C) ........................................................................ 245, 248
Hutson 1964 1 PH H16 (O) ........................................................................................... 524
Huyser 1968 3 SA 490
Hymans 1927 AD 35 ............................................................................................. 532, 534

I
I 1976 1 SA 781 (RA) .......................................................................... 74, 97, 98, 100, 465
Impey 1960 4 SA 556 (E) .............................................................................................. 544
Incorporated Law Society v Sand 1910 TPD 1295 ....................................................... 325
Incorporated Law Society v Visse 1958 4 SA 115 (T) .................................................. 497
Incorporated Law Society v Wessels 1927 TPD 592 .................................................... 325
Ingham 1958 2 SA 37 (C) .............................................................................................. 268
Ingram 1999 2 SACR 127 (W) ...................................................................................... 247
Ireland [1998] AC 147 ................................................................................................... 451
Isaacs 1968 2 SA 187 (D) ...................................................................... 526, 529, 531, 532
Ismail 1943 CPD 418..................................................................................................... 397
Ismail 1958 1 SA 206 (A) .............................................................................. 515, 516, 518
Ismail 1965 1 SA 452 (N) ...................................................................................... 247, 248
Ismail v Durban Corporation 1971 2 SA 606 (N) ......................................................... 257
Ivory 1916 WLD 17....................................................................................................... 166

J
J 1953 3 SA 494 (E)....................................................................................................... 464
J 1975 3 SA 146 (O) ...................................................................................................... 171
J 1980 4 SA 113 (E)....................................................................................... 417, 418, 419
J 1989 1 SA 525 (A) ...................................................................................................... 356
Jabulani 1980 1 SA 331 (D) .......................................................................................... 509
Jack 1908 TS 131........................................................................................... 444, 447, 461
Jackelson 1920 AD 486 ......................................................................................... 267, 270
Jackson 1957 4 SA 636 (R) ................................................................................... 471, 474
Jackson 1963 2 SA 626 (A) ........................................................................................... 110
Jackson 1990 2 SACR 505 (E) ...................................................................................... 424
Jacobs 1926 OPD 184 .................................................................................................... 394
Jacobs 1955 2 PH H187 (W) ......................................................................................... 479
Jacobs 1989 1 SA 652 (A) ......................................................................... 65, 68, 425, 517
Jacobs 1989 1 SA 882 (A) ............................................................................................... 78
Jaffet 1962 2 PH H220 (R) ............................................................................................ 541
Jakwane 1944 OPD 139................................................................................................. 554
Jama 1989 3 SA 427 (A) ............................................................................................... 259
James 1960 R and N 159 ............................................................................................... 464
Jana 1981 1 SA 671 (T) ......................................................................................... 461, 466
Janoo 1959 3 SA 107 (A) .............................................................................................. 492
Jansen 1959 1 SA 777 (C) ............................................................................................. 418
Jansen 1983 3 SA 534 (NC) .......................................................................................... 103
Jantjies 1991 1 SACR 74 (C)........................................................................................... 85
Japel 1906 TS 111 ......................................................................................................... 468
Jara 2003 2 SACR 216 (Tk) .......................................................................................... 229
Jarrard 1939 EDL 102 ................................................................................................... 332
580 CRIMINAL LAW

PAGE
Jass 1965 3 SA 248 (E) .................................................................................................. 530
Jassane 1973 4 SA 658 (T) ............................................................................................ 193
Jecha 1984 1 SA 215 (Z) ............................................................................................... 546
Jeremiah 1965 4 SA 205 (R) ......................................................................................... 514
Jetha 1929 NPD 91 .......................................................................................................... 61
Job 1976 1 SA 207 (NC) ......................................................................................... 68, 425
Joffe 1925 TPD 86 ......................................................................................................... 513
Joffe 1934 SWA 108 ..................................................................................... 533, 534, 535
Johannes 1918 CPD 488 ................................................................................................ 544
John 1931 SALJ 83 ........................................................................................................ 530
John 1969 2 SA 560 (RA) ....................................................................................... 88, 225
Johnson 1969 1 SA 201 (A)............................................................. 55, 155, 234, 235, 242
Johnson 1977 4 SA 116 (RA) ........................................................................................ 508
Jolly 1923 AD 176 ......................................................................................... 205, 448, 449
Jolosa 1903 TS 694 ................................................................................................ 524, 530
Jona 1961 2 SA 301 (W) ............................................................................................... 476
Jonathan 1987 1 SA 633 (A) ......................................................................... 272, 273, 274
Jongani 1937 AD 400 .................................................................................................... 272
Jordan (1956) 49 Cr App Rep 152 ................................................................................... 91
Jordan 2002 2 SACR 499 (CC) ............................................................... 42, 375, 376, 377
Jorgenson 1935 EDL 219 ...................................................................... 395, 397, 398, 399
Joseph 1964 4 SA 54 (RA) .................................................................................... 453, 454
Joseph Mtshumayeli (Pvt) Ltd 1971 1 SA 33 (RA) ...................................................... 246
Josephus 1991 2 SACR 347 (C) .................................................................................... 280
Joshua 2003 1 SACR 1 (SCA)....................................................................................... 208
Josiya 1970 4 SA 549 (R) .............................................................................................. 479
Joubert 1961 4 SA 196 (O) .................................................................................... 533, 535
Joyce v DPP [1946] 1 All ER 186 (HL) ........................................................................ 302
Judin 1969 4 SA 425 (A) ....................................................................................... 525, 530
Julies 1996 2 SACR 108 (CC) ............................................................... 337, 424, 456, 507

K
K 1951 4 SA 49 (O) ....................................................................................................... 126
K 1956 2 SA 217 (T) ............................................................................................. 418, 419
K 1956 3 SA 353 (A) ..................................................... 104, 107, 110, 156, 173, 174, 175
K 1958 3 SA 420 (A) ..................................................................... 123, 126, 353, 355, 356
K 1966 1 SA 366 (RA) .......................................................................................... 126, 354
K 1975 3 SA 446 (N) ..................................................................................................... 467
Kaba 1970 1 SA 439 (T) ................................................................................................ 210
Kadongoro 1980 2 SA 581 (R) ...................................................................................... 233
Kahn 1928 CPD 328 .............................................................................................. 395, 398
Kama 1949 1 PH H66 (O) ..................................................................................... 487, 539
Kamfer 1965 1 SA 521 (SWA) ..................................................................................... 263
Kamffer 1965 3 SA 96 (T)............................................................................................. 105
Kaplin 1964 4 SA 355 (T) ............................................................................................. 521
Karolia 1956 3 SA 569 (T) .................................................................................... 481, 513
Karvie 1945 TPD 159 .................................................................................................... 105
Kasamula 1945 TPD 252 ................................................................................................. 67
Kashion 1963 1 SA 723 (R)................................................................................... 312, 314
Kature 1967 1 PH H125 (RA) ....................................................................................... 335
Katz 1959 3 SA 408 (C) ................................................................................ 276, 279, 280
Kaukakani 1947 2 SA 807 (A) ...................................................................................... 235
Kavin 1978 2 SA 731 (W) ............................................................................................. 167
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PAGE
Kaye 1928 TPD 463 ...................................................................................................... 463
Kazi 1963 4 SA 742 (W) ....................................................................................... 191, 269
Kearny 1964 2 SA 495 (A) ............................................................................................ 498
Kelaman (1897) 14 SC 329 ........................................................................................... 444
Kelder 1967 2 SA 644 (T) ............................................................................................. 242
Kellner 1963 2 SA 435 (A) ............................................................................................ 268
Kemp [1956] 3 All ER 249 ............................................................................................ 166
Ken 1966 4 SA 514 (N) ................................................................................................. 454
Kennedy 1951 4 SA 431 (A) ......................................................................................... 171
Kensley 1995 1 SACR 646 (A) ..................................................................... 159, 248, 252
Keppler 1970 4 SA 673 (T) ........................................................................................... 534
Kerkhoff v Minister of Justice and Constitutional Development
2011 2 SACR 109 (NGHP)........................................................................................ 325
Kesolofetse 2004 2 SACR 166 (NC) ............................................................................. 550
Kewelram 1922 AD 213 ................................................................................................ 542
Keyser 1951 1 SA 512 (A) ............................................................................................ 322
Kganare 1955 1 PH H106 (O) ....................................................................................... 335
Kgogong 1980 3 SA 600 (A) ......................................................................................... 140
Kgoyane 1982 4 SA 133 (T) .......................................................................................... 509
Kgupane 1975 2 SA 73 (T) ............................................................................................ 425
Kgware 1977 2 SA 454 (O) ........................................................................... 189, 539, 541
Khambule 2001 1 SACR 501 (SCA) ..................................................................... 257, 258
Khan 1963 4 SA 897 (A) ............................................................................................... 337
Khotle 1981 3 SA 937 (C) ............................................................................................. 233
Khoza 1973 4 SA 23 (O) ....................................................................... 287, 288, 290, 337
Khoza 1982 3 SA 1019 (A) ........................................................... 252, 258, 268, 269, 271
Khubeka 1980 4 SA 221 (O) ................................................................................. 162, 175
Khumalo 1960 2 PH H245 (N) ...................................................................................... 255
Khumalo 1964 1 SA 498 (N) ......................................................................... 517, 518, 519
Khumalo 1975 4 SA 345 (N) ......................................................................................... 489
Khumalo 1984 3 SA 327 (A) ........................................................................................... 19
Khumalo 1991 4 SA 310 (A) ......................................................................................... 313
Kibi 1978 4 SA 173 (E) ................................................................. 103, 115, 118, 119, 336
Killian 1977 2 SA 31 (C) ....................................................................... 191, 397, 398, 399
Kimberley 2004 2 SACR 38 (E) ............................................................ 253, 254, 262, 270
Kimmich 1996 2 SACR 200 (C) ................................................................... 482, 495, 497
Kinqa 1962 2 SA 401 (E) .............................................................................................. 487
Kinsella 1961 3 SA 519 (C)........................................................................................... 487
Kiti 1994 1 SACR 14 (E)....................................................................................... 327, 330
Kleyn 1927 CPD 288 ..................................................................................................... 105
Klopper 1975 4 SA 773 (A)............................................................................................. 40
Knox 1963 3 SA 431 (N) ............................................................................................... 537
Kock 1988 1 SA 37 (A) ................................................................................................. 270
Koekemoer 1959 1 PH H131 (O) .................................................................................. 493
Kok 1998 1 SACR 532 (N) ....................................................................................... 54, 56
Kok 2001 2 SACR 106 (SCA)......................................................................... 56, 165, 168
Kokkinakis v Greece (1994) 16 EHRR 397 .................................................................... 48
Kolia 1937 TPD 105 .............................................................................................. 533, 535
Konyana 1992 1 SACR 451 (O) .................................................................................... 549
Koopman 1958 3 SA 68 (G) .......................................................................................... 489
Kosztur 1988 3 SA 926 (A) ........................................................................................... 171
Kotze 1965 1 SA 118 (A) ................................................. 45,475, 482, 494, 495, 496, 497
Kotze 2010 1 SACR 100 (SCA) .................................................................................... 142
Koza 1949 4 SA 555 (A) ............................................................................................... 202
582 CRIMINAL LAW

PAGE
Kruger 1950 1 SA 591 (O) .................................................................................... 534, 535
Kruger 1961 4 SA 816 (A) ............................................................................ 528, 529, 530
Kruger 1989 1 SA 785 (A) ............................................................................................ 500
Kruger v Coetzee 1966 2 SA 428 (A) ........................................................................... 217
Kruse 1946 AD 524 ............................................................................................... 524, 530
Kula 1955 1 PH H66 (O) ....................................................................................... 487, 539
Kumalo 1952 2 SA 389 (T) ........................................................................................... 489
Kumalo 1956 3 SA 238 (N) ........................................................................................... 168
Kumbe 1962 3 SA 197 (N) .................................................................................... 491, 501
Kuzwayo 1949 3 SA 761 (A) ........................................................................................ 202
Kwadi 1989 3 SA 524 (NC) .......................................................................................... 262
Kwanda 2013 1 SACR 137 (SCA) .......................................................................... 68, 427

L
L 1981 1 SA 499 (B) ............................................................................................. 397, 398
L 1982 2 SA 133 (T) ...................................................................................................... 508
L 1982 2 SA 768 (ZH) ................................................................................................... 509
L 1991 2 SACR 329 (C) ................................................................................................ 434
La Grange 1991 1 SACR 276 (C).............................................................................. 40, 41
Labuschagne 1941 TPD 271 .......................................................................................... 303
Labuschagne 1997 2 SACR 6 (NC)............................................................................... 528
Lachman 2010 2 SACR 52 (SCA)................................................................................. 145
Laforte 1922 CPD 487 ........................................................................................... 487, 493
Lalbhai (1909) 19 CTR 751 ........................................................................................... 334
Lambert 1927 SWA 32 .................................................................................................. 272
Lamont 1977 2 SA 679 (RA)......................................................................................... 255
Langa 1998 1 SACR 21 (T) ........................................................................................... 516
Lange 1989 1 SACR 199 (W) ............................................................................... 245, 247
Langley 1931 CPD 31 ..................................................................................................... 41
Lark Clothing (Pty) Ltd 1973 1 SA 239 (C) .................................................................. 247
Larkins 1934 AD 91 .............................................................................................. 525, 526
Latham 1980 1 SA 723 (ZRA) ...................................................................................... 488
Latib 1968 1 SA 177 (T) ................................................................................................ 535
Latib 1973 3 SA 982 (A) ....................................................................................... 524, 526
Laubscher 1913 CPD 123 ...................................................................................... 540, 541
Laubscher 1948 2 PH H46 (C) ...................................................................................... 483
Laubscher 1988 1 SA 163 (A) ....................................................... 155, 157, 158, 163, 166
Laurence 1975 4 SA 825 (A) ......................................................................................... 278
Lavenstein 1919 TPD 348 ............................................................................................. 405
Lavhengwa 1996 2 SACR 453 (W) ......................................................... 43, 318, 319, 320
Lawrence 1954 2 SA 408 (C) ........................................................................................ 544
Lawrence 1991 2 SACR 57 (A)..................................................................................... 171
Lazarus 1922 CPD 293 .................................................................................................. 419
Le Roux 1959 1 SA 808 (T) .......................................................................................... 498
Le Roux 2010 2 SACR 11 (SCA).................................................................. 311, 312, 313
Leballo 1954 2 SA 657 (O) ................................................................................... 533, 534
Lees 1927 EDL 314 ....................................................................................................... 395
Leeuw 1975 1 SA 439 (O) ......................................................................................... 61, 62
Leeuw 1980 3 SA 815 (A) ............................................................................................. 168
Lehnberg 1975 4 SA 553 (A) ........................................................................................ 171
Leibbrandt 1944 AD 253 ....................................................................... 303, 304, 305, 306
Leibrandt 1939 WLD 377 .............................................................................................. 534
Lekgathe 1982 3 SA 104 (B) ......................................................................... 138, 139, 215
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PAGE
Lekoatha 1946 OPD 6 ................................................................................................... 312
Lekute 1991 2 SACR 221 (C) ....................................................................................... 547
Lentit 1950 1 SA 16 (C) ........................................................................ 471, 472, 473, 474
Lepheana 1956 1 SA 337 (A) ................................................................................ 418, 419
Lesch 1983 1 SA 814 (O) ...................................................................... 155, 157, 158, 254
Lesia 1978 3 SA 930 (B) ............................................................................................... 398
Lessing 1907 EDC 220 .......................................................................................... 485, 487
Letoka 1947 3 SA 713 (O)..................................................................................... 435, 436
Letsoela 1942 OPD 99 ................................................................................................... 534
Levitan 1958 1 SA 639 (T) ............................................................................................ 537
Levy 1929 AD 312 ........................................................................................................ 248
Levy 1967 1 SA 351 (W)....................................................................................... 472, 474
Lewis 1968 2 PH H367 (T) ........................................................................................... 464
Libazi 2010 2 SACR 233 (SCA) ................................................................................... 287
Limbada 1958 2 SA 481 (A) ......................................................................................... 247
Linda 1966 1 SA 41 (O), ............................................................................................... 418
Lionda 1944 AD 348 ............................................................................................. 278, 281
Lizzy 1995 2 SACR 739 (W) ........................................................................................ 319
Lombard 1948 2 SA 31 (T) ........................................................................................... 553
Lombard 1980 3 SA 948 (T) ......................................................................................... 423
Lombard 1981 3 SA 198 (A) ......................................................................................... 242
Long 1969 3 SA 713 (R) ....................................................................................... 472, 474
Long 1970 2 SA 153 (RA)............................................................................. 472, 473, 474
Longdistance (Natal) (Pty) Ltd 1990 2 SA 277 (N) ...................................... 210, 214, 233
Longdistance (Pty) Ltd 1986 3 SA 437 (N)........................................................... 210, 233
Loubser 1953 2 PH H190 (W) ......................................................................................... 85
Lubisi 1982 3 SA 113 (A) ..................................................................................... 304, 306
Lujaba 1987 1 SA 226 (A)............................................................................................. 490
Lungile 1999 2 SACR 597 (SCA) ............................. 87, 93, 118, 119, 189, 199, 205, 263
Lushozi 1968 1 PH H 21 (T) ......................................................................................... 255
Lutge 1947 2 SA 490 (N) .............................................................................................. 419
Luther 1962 3 SA 506 (A) ............................................................................................. 491
Luyt 1927 AD 1 ............................................................................................................. 326
Lwane 1966 2 SA 433 (A) ............................................................................................. 208

M
M 1990 1 SACR 456 (N) ....................................................................................... 344, 361
M 1915 CPD 334 ........................................................................................................... 467
M 1947 4 SA 489 (N) .................................................................................................... 462
M 1953 4 SA 393 (A) .................................................................................... 125, 127, 353
M 1961 2 SA 60 (O) ...................................................................................................... 449
M 1968 2 SA 617 (T)..................................................................................................... 380
M 1978 3 SA 557 (Tk)................................................................................... 162, 173, 175
M 1979 2 SA 25 (A) .............................................................................................. 464, 467
M 1979 4 SA 564 ................................................................................................... 173, 175
M 1982 1 SA 309 (O) .................................................................................... 479, 489, 490
M 1985 1 SA 1 (A) ........................................................................................................ 171
M 1989 4 SA 718 (T)..................................................................................................... 543
M 1997 2 SACR 340 (O) ............................................................................................... 387
M 1999 2 SACR 548 (SCA) .......................................................................................... 379
M 2004 1 SACR 228 (O) ....................................................................................... 381, 382
M’Tech 1912 TPD 1132 ................................................................................................ 544
Mabaso 1990 1 SACR 675 (T) ...................................................................................... 318
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Mabona 1935 TPD 407 .................................................................................................. 469
Mabrida 1959 1 R and N 186 ................................................................................ 471, 474
Mabula 1927 AD 159 .................................................................................................... 542
Macatlane 1927 TPD 708 .............................................................................. 530, 533, 534
MacDonald 1953 1 SA 107 (T) ..................................................................................... 468
MacDonald 1980 2 SA 939 (A) ..................................................................................... 509
MacDonald 1982 3 SA 220 (A) ..................................................................... 524, 526, 531
Macu v Du Toit 1983 4 SA 629 (A) .............................................................................. 131
Madihlaba 1990 1 SA 76 (T) ......................................................................................... 215
Madikane 1990 1 SACR 377 (N) ...................................................................... 83, 87, 454
Madikela 1994 1 SACR 37 (BA)................................................................................... 282
Madito 1970 2 SA 534 (C) ............................................................................................ 483
Madlala 1992 1 SACR 473 (N) ..................................................................................... 271
Madyo 1990 1 SACR 292 (E) ....................................................................................... 546
Maelangwe 1999 1 SACR 133 (NC) ..................................................... 253, 257, 258, 547
Mafadza 1987 2 SA 113 (V) .......................................................................................... 508
Mafora 2010 1 SACR 269 (NWM) ............................................................................... 339
Mafu 1966 2 SA 240 (E) ................................................................................................. 61
Mafu 1992 2 SACR 494 (A) ............................................................................................ 11
Magagula 2001 2 SACR 123 (T) ................................................................................... 258
Magerman 1960 1 SA 184 (O) ...................................................................................... 318
Magidson 1984 3 SA 825 (T) ........................................................................................ 140
Magmoed v Janse van Rensburg 1993 1 SACR 67 (A) ................................................ 261
Maguire 1969 4 SA 191 (RA) ....................................................................................... 448
Magwaza 1985 3 SA 29 (A) .......................................................................................... 261
Magxwalisa 1984 2 SA 314 (N) .................................................................... 279, 280, 301
Mahlakwane 1968 2 PH H331 (O) ................................................................................ 447
Mahlangu 1986 1 SA 135 (T) .......................................................................................... 43
Mahlangu 1995 2 SACR 425 (T)....................................................................... 59, 60, 268
Mahlinza 1967 1 SA 408 (A)................................................................. 155, 156, 165, 166
Mahomed 1929 AD 58 .......................................................................................... 418, 419
Mahomed 1938 AD 30 .................................................................................................. 118
Mahomed 1951 1 SA 439 (T) ................................................................................ 336, 337
Mahomed Hossain 1913 CPD 841 ........................................................................ 333, 334
Mailula 1998 1 SACR 649 (T) ...................................................................................... 551
Maisa 1968 1 SA 271 (T) .............................................................................................. 548
Maisel v Van Naeren 1960 4 SA 836 (C) ...................................................................... 469
Majikazana 2012 2 SACR 107 (SCA) ........................................................................... 429
Majola 1975 2 SA 727 (A) ...................................................................................... 40, 423
Majola 2001 1 SACR 337 (N) ......................................................................................... 55
Major 1968 2 PH H186 (R) ........................................................................................... 379
Majosi 1991 2 SACR 532 (A) ............................................................................... 178, 188
Makgatho 2013 2 SACR 13 (SCA) ............................................................... 178, 180, 187
Makhati 1997 2 SACR 524 (O) ..................................................................................... 517
Makhutla 1968 2 SA 768 (O) ........................................................................................ 500
Maki 1994 2 SACR 414 (E) .................................................................................. 244, 249
Maklakla 1919 TPD 336 ................................................................................................ 536
Makoelman 1932 EDL 194 ................................................................................... 544, 547
Makonie 1942 OPD 164 ................................................................................................ 479
Makwanyane 1995 2 SACR 1 (CC) .............................................................. 263, 356, 440
Makwanyane 1995 3 SA 391 (CC); 1995 2 SACR 1 (CC) ............................................. 26
Makwasie 1970 2 SA 128 (T) ........................................................................................ 257
Malamu Nkatlapaan 1918 TPD 424 ...................................................................... 540, 541
Malan 1915 TPD 180............................................................................................. 309, 311
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PAGE
Malan 2013 2 SACR 655 (WCC) .................................................................................. 525
Malatje 1981 4 SA 249 (B) ............................................................................................ 221
Maleka 1965 2 SA 774 (T) ............................................................................................ 432
Malgas 2001 1 SACR 469 (SCA) ........................................................ 19, 39, 49, 358, 512
Malianga 1962 3 SA 940 (R) ......................................................................................... 334
Malinga 1963 1 SA 692 (A) .................................................................................. 258, 261
Mall 1959 4 SA 607 (N) ................................................................................................ 247
Mamabolo 2001 1 SACR 686 (CC)............................................... 316, 322, 323, 324, 326
Mambo 2006 2 SACR 563 (SCA) ................................................................................. 258
Manamela 2000 1 SACR 414 (CC) ....................................................................... 409, 520
Mandela 2001 1 SACR 156 (C)..................................................... 117, 119, 122, 152, 153
Manderson 1909 TS 1140 ...................................................................................... 434, 435
Mandetela 1948 4 SA 985 (E) ....................................................................................... 540
Mange 1980 4 SA 613 (A)..................................................................................... 301, 304
Manngo 1980 3 SA 1041 (V) ........................................................................................ 432
Mans 1950 1 SA 602 (C) ............................................................................................... 322
Manuel 1953 4 SA 523 (A) ........................................................................... 495, 496, 498
Mara 1966 1 SA 82 (SR) ............................................................................................... 221
Marais (1888) 6 SC 367 ................................................................................... 47, 433, 434
Marais 1969 4 SA 532 (NC) .......................................................................................... 509
Mardon 1947 2 SA 768 (Sp Ct) ............................................................................. 302, 303
Maree 1964 4 SA 545 (O) ..................................................................................... 272, 331
Maritz 1956 3 SA 147 (G) ..................................................................................... 540, 541
Maritz 1996 1 SACR 405 (A) ................................................................ 178, 181, 183, 189
Markins Motors (Pty) Ltd 1958 4 SA 686 (N) .............................................................. 491
Markins Motors (Pty) Ltd 1959 3 SA 508 (A) .............................................................. 514
Marks 1965 3 SA 834 (W)............................................................................................. 247
Martheza (1885) 3 HCG 456 ......................................................................................... 334
Maruba 1941 2 PH H249 (O) ........................................................................................ 539
Maruba 1942 OPD 51 .................................................................................................... 487
Maruma 1955 3 SA 561 (O) .......................................................................................... 547
Marx 1962 1 SA 848 (N) ....................................................................... 444, 447, 448, 449
Marx 2009 2 SACR 562 (E) .......................................................................................... 254
Maseko 1950 1 SA 586 (A) ................................................................................... 443, 444
Maseko 2004 1 SACR 22 (T) ........................................................................................ 543
Maserow 1942 AD 164 .................................................................................................. 274
Mashanga 1924 AD 11 .......................................................................................... 539, 540
Mashigo 1976 6 PH H210 (A) ....................................................................................... 548
Mashiya 1955 2 SA 417 (E) .......................................................................................... 534
Mashotonga 1962 2 SA 321 (R) .................................................................................... 257
Masilela 1968 2 SA 558 (A) .................................................................... 93, 148, 149, 195
Masilo 1963 4 SA 918 (T) ............................................................................................... 65
Masiya 2006 2 SACR 357 (T) ............................................................................. 46, 47, 48
Masiya v Director of Public Prosecutions 2007 2 SACR 435 (CC) .......... 44, 45, 344, 345
Masondo 1989 3 SA 734 (N) ......................................................................................... 260
Matakane 1947 3 SA 717 (O) ........................................................................................ 334
Matakane 1948 3 SA 384 (A) ........................................................................................ 333
Mataung 1953 4 SA 35 (O) ........................................................................................... 542
Mathe 1998 2 SACR 225 (O) ........................................................................................ 424
Mathlala 1951 1 SA 49 (T) ............................................................................................ 314
Mathoho: in re da Silva Pessegueiro v Tshinanga 2006 1 SACR 388 (T) ............ 318, 319
Mati 2002 1 SACR 323 (C) ................................................................................... 510, 511
Matjeke 1980 4 SA 267 (B) ........................................................................................... 509
Matlare 1965 3 SA 326 (C) ........................................................................................... 482
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Matle 1984 3 SA 748 (NC) .................................................................................... 202, 204
Matlou v Makhubedu 1978 1 SA 946 (A) ..................................................................... 131
Matoma 1981 3 SA 838 (A) ............................................................................................ 20
Matsabu 2009 1 SACR 513 (SCA) ................................................................................ 145
Matsemela 1988 2 SA 254 (T)....................................................................................... 125
Matsepe 1931 AD 150 ................................................................................................... 150
Matthews 1943 CPD 8 ................................................................................................... 432
Matthews 1950 3 SA 671 (N) ................................................................................ 443, 444
Matu 2012 1 SACR 68 (ECB) ....................................................................................... 172
Matyityi 2011 1 SACR 40 (SCA) .................................................................................... 19
Maunatlala 1982 1 SA 877 (T) ...................................................................................... 547
Mavhungu 1981 1 SA 56 (A) ........................................................................ 178, 202, 204
Mavros 1921 AD 19 ...................................................................................... 539, 540, 542
Mavungu 2009 1 SACR 425 (T) .................................................................. 545, 546, 552
Maxaba 1981 1 SA 1148 (A) ................................................................. 251, 253, 261, 266
Mayekiso 1988 4 SA 738 (W) ............................................................... 299, 300, 304, 305
Mayekiso 1990 2 SACR 38 (NC) .................................................................................... 65
Mayers 1958 3 SA 793 (R) ............................................................................................ 136
Mayisela 2013 2 SACF 129 (NGP) ............................................................................... 355
Mayo 1969 1 PH H26 (R) .............................................................................................. 364
Mazwai 1979 4 SA 484 (T) ........................................................................................... 337
Mbaba 2002 1 SACR 43 (E) .......................................................................................... 318
Mbande 1933 AD 382 ................................................................................................... 268
Mbanyaru 2009 1 SACR 631 (C) .................................................................. 259, 260, 265
Mbatha 1987 2 SA 272 (A) ........................................................................................... 261
Mbatha 1996 1 SACR 371 (CC) .................................................................... 337, 456, 507
Mbebe 2004 2 SACR 537 (Ck) ..................................................................................... 517
Mbele 1991 1 SA 307 (T) ...................................................................... 245, 246, 248, 249
Mbokazi 1998 1 SACR 438 (N) .................................................................................... 525
Mbokazi 1998 2 All SA 78 (N) ..................................................................................... 527
Mbombela 1933 AD 269 ....................................................................................... 220, 223
Mbulawa 1969 1 SA 532 (EC) ........................................................................................ 67
McCoy 1953 2 SA 4 (R) ................................................................................................ 126
McEvilly and Lee [1979] 60 Crim LR 150 ................................................................... 147
McIntosh (1910) 4 BAC 63 ........................................................................................... 332
McIver 1929 TPD 574 ........................................................................................... 468, 469
McKenna 1998 1 SACR 106 (C) ................................................................................... 318
McLean 1918 TPD 94 ................................................................................................... 534
McLoughlin 1929 CPD 359........................................................................................... 326
McPherson 1972 2 SA 348 (E) ...................................................................................... 498
Mcunu 1938 NPD 229 ................................................................................................... 312
Mdakani 1964 3 SA 311 (T) .......................................................................... 328, 329, 330
Mdantile 2011 2 SACR 142 (FB) .......................................................................... 524, 529
Mdau 2001 1 SACR 625 (T) ................................................................................. 453, 454
Mdukazi 1972 4 SA 256 (NC) ....................................................................................... 173
Mdunge 1962 2 SA 500 (N) .......................................................................................... 553
Mealy and Sheridan [1974] Crim App R 59 .................................................................. 147
Meer 1958 2 SA 175 (N) ............................................................................................... 246
Mei 1982 1 SA 299 (O) ......................................................................................... 312, 313
Meinert 1932 SWA 56 ................................................................................................... 434
Mekula 2012 2 SACR 521 (ECG) ......................................................................... 480, 490
Meleka 1965 2 SA 774 (T) ............................................................................................ 445
Melk 1988 4 SA 561 (A) ............................................................................................... 260
Mello 1998 1 SACR 267 (T) ................................................................................... 67, 421
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Mello 1999 2 SACR 255 (CC) ...................................................................................... 421
Mellors 1990 1 SACR 347 (W) ..................................................................... 471, 473, 474
Melrose 1985 1 SA 720 (ZS) ......................................................................................... 453
Melville 1959 3 SA 544 (E)................................................................................... 547, 548
Memani 1990 2 SACR 4 (TkA)............................................................................. 260, 261
Mendez v Kitching 1995 2 SACR 634 (E) .................................................................... 145
Mene 1988 3 SA 641 (A)....................................................................................... 329, 331
Metcalf 1944 CPD 266 .................................................................................................. 325
Meyer Yates (1897) 4 OR 134....................................................................................... 335
Meyers 1948 1 SA 375 (A) ............................................................................................ 411
Meyeza 1962 3 SA 386 (N) ........................................................................................... 544
Mgcineni 1993 1 SACR 746 (E) ................................................................................... 454
Mgedezi 1989 1 SA 687 (A) .................................................................................. 257, 259
Mgxwiti 1954 1 SA 370 (A) .......................................................................................... 258
Mhlongo 1942 NPD 134 ................................................................................................ 397
Mhlongo 1960 4 SA 574 (A) ......................................................................................... 443
Mia 2009 1 SACR 330 (SCA) ............................................................................... 536, 537
Midi Television (Pty) Ltd v Director of Public Prosecutions (Western Cape)
[2007] 3 All SA 318 (SCA) ............................................................................... 315, 321
Milne and Erleigh 1951 1 SA 791 (A)............................. 53, 290, 293, 294, 495, 496, 499
Minister of Law and Order v Kadir 1995 1 SA 303 (A) ................................................. 59
Minister of Police v Skosana 1977 1 SA 31 (A) ............................................................. 83
Minister of Safety and Security v Howard 2009 2 SACR 536 (GSJ) ........................... 330
Minister of Safety and Security v Mohofe 2007 2 SACR 92 (SCA)............................. 217
Minister van Polisie v Ewels 1975 3 SA 590 (A) ...................................................... 59, 60
Minister van Vervoer v Bekker 1975 3 SA 128 (O) ...................................................... 224
Minnaar 1981 3 SA 767 (D) .......................................................................................... 528
Mintoor 1996 1 SACR 514 (C) ....................................................................... 44, 482, 483
Misnum 1906 TS 216 .................................................................................................... 296
Mitchell 1992 1 SACR 17 (A) ............................................................................... 257, 258
Miya 1966 4 SA 274 (N) ....................................................................................... 447, 450
Mjezu 1996 2 SACR 594 (NC) ..................................................................................... 424
Mkansi 2004 1 SACR 281 (T) ....................................................................................... 202
Mkhize 1980 4 SA 36 (N) ............................................................................................. 521
Mkhize 1999 2 SACR 632 (W) ..................................................................................... 261
Mkize 1951 3 SA 28 (A) ............................................................................................... 223
Mkize 1959 2 SA 260 (N) ............................................................................................. 155
Mkize 1961 4 SA 77 (N) ............................................................................................... 544
Mkize 1962 2 SA 457 (N) ............................................................................................. 318
Mkize 1975 1 SA 517 (A) ............................................................................................. 422
Mkwanazi 1967 2 SA 593 (N) ....................................................................................... 227
Mkwetshana 1965 2 SA 493 (N) ................................................................................... 223
Mlambo 1986 4 SA 34 (E)............................................................................. 278, 279, 422
Mlooi 1925 AD 131 ....................................................................................... 272, 500, 501
Mlotswha 1989 4 SA 787 (W) ............................................................................... 311, 313
Mnanzana 1966 3 SA 38 (T) ........................................................................................... 45
Mncwango 1955 1 PH H2 (N) ............................................................................... 471, 474
Mneke 1961 2 SA 240 (N)............................................................................................. 122
Mngoma 2009 1 SACR 435 (EC) .................................................................................... 13
Mngomezulu 1972 2 PH H96 (N) ................................................................................. 447
Mnguni 1966 3 SA 776 (T) ........................................................................................... 107
Mnisi 1996 1 SACR 496 (T) ................................................................................. 261, 428
Mnisi 2009 2 SACR 227 (SCA) ............................................................................ 252, 254
Mntoninthsi 1970 2 SA 443 (E)..................................................................................... 418
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Mnyanda 1976 2 SA 751 (A)................................................................................. 166, 171
Mnyandu 1973 4 SA 603 (N) ................................................................................ 539, 541
Modus Publications (Private) Ltd 1998 2 SACR 465 (ZS) ................................... 468, 469
Moeng 1977 3 SA 986 (O) .............................................................................................. 62
Moerane 1962 4 SA 105 (T) .......................................................................................... 509
Mofokeng 1957 2 SA 162 (O) ....................................................................................... 337
Mofokeng 1973 1 SA 89 (O) ........................................................................................... 65
Mofokeng 1982 4 SA 147 (T) ....................................................................................... 510
Mofoking 1939 OPD 117 .............................................................................................. 536
Mogala 1978 2 SA 412 (A) ........................................................................................... 511
Mogohlwane 1982 2 SA 587 (T) ........................................................................... 105, 109
Mohale 1955 3 SA 563 (O) ................................................................................... 489, 539
Mohale 1999 2 SACR 1 (W) ......................................................................................... 135
Mohamed 1999 1 SACR 287 (O) .......................................................................... 510, 511
Mohapi 1984 1 SA 270 (O) ........................................................................................... 458
Mohapie 1969 4 SA 447 (C) .................................................................................. 516, 517
Moila 2005 2 SACR 517 (T) ......................................................................... 315, 322, 323
Mojaki 1993 1 SACR 491 (O) ....................................................................................... 518
Mokgethi 1990 1 SA 32 (A) .................................................................... 81, 83, 84, 88, 90
Mokgiba 1999 1 SACR 534 (O) .................................................................................... 105
Mokoena 1975 4 SA 295 (O)......................................................................................... 508
Mokoena 1976 4 SA 162 (O)................................................................. 104, 105, 110, 114
Mokonto 1971 2 SA 319 (A) ......................................................................... 250, 253, 254
Mokwanazi 1959 3 SA 782 (W) .................................................................................... 168
Mokwena 1948 4 SA 772 (T) ................................................................................ 334, 335
Molapo 2004 2 SACR 417 (T). ..................................................................................... 319
Molefe 2012 2 SACR 574 (GNP) .................................................................................. 432
Molele 1960 1 PH K61 (O) ........................................................................................... 553
Molelekeng 1992 1 SA 604 (T) ..................................................................................... 553
Molimi 2006 1 SACR 8 (SCA) ............................................................................. 199, 261
Moller 1971 4 SA 327 (T) ..................................................................................... 540, 541
Moller 1990 3 SA 876 (A) ............................................................................................. 520
Moloto 1982 1 SA 844 (A) ............................................................................................ 509
Moloy 1953 3 SA 659 (T) ............................................................................................. 103
Molubi 1988 2 SA 576 (B) ............................................................................................ 214
Momberg 1970 2 SA 68 (C) .......................................................................... 464, 466, 467
Mongalo 1978 1 SA 414 (O) ......................................................................................... 257
Mongwe 1974 3 SA 326 (T) .......................................................................................... 319
Monyane 1960 3 SA 20 (T) ........................................................................................... 516
Moodie 1983 1 SA 1161 (C) ................................................................................. 524, 530
Moolchund (1902) 23 NLR ........................................................................................... 524
Morgan 1993 2 SACR 134 (A) ...................................................................................... 271
Morisette v United States (1952) 342 US 246 ............................................................... 258
Moroe 1981 4 SA 897 (O) 8 .......................................................................................... 547
Moshesh 1948 1 SA 681 (O) ......................................................................................... 532
Moshoeu 2007 1 SACR 38 (T) .............................................................................. 318, 326
Mosoinyane 1998 1 SACR 583 (T) ............................................................................... 421
Mosoinyane 1998 1 SACR 583 (T) ....................................................................... 421, 551
Mososa 1931 CPD 348 .......................................................................................... 547, 548
Mostert 1915 CPD 266 .................................................................................................... 61
Mostert 2006 1 SACR 560 (N) ...................................................... 135, 136, 208, 461, 464
Mostert 2010 1 SACR 223 (SCA) ................................................................................. 483
Motati (1896) 13 SC 173 ............................................................................... 471, 472, 474
Motau 1963 2 SA 521 (T) ................................................................................ 47, 539, 542
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Motau 1968 4 SA 670 (A) ..................................................................................... 217, 225
Motaung 1961 2 SA 209 (A) ......................................................................................... 258
Motaung 1990 4 SACR 485 (A) ............................................................................ 260, 265
Motete 1943 OPD 55 ..................................................................................... 491, 533, 534
Motiwane 1974 4 SA 683 (NC) ..................................................................................... 504
Motleleni 1976 1 SA 403 (A) ........................................................................................ 112
Motsema 2012 2 SACR 96 (SGJ) .................................................................... 68, 258, 427
Motseremedi 1965 2 SA 220 (O)................................................................................... 491
Motshari 2001 1 SACR 550 (NC) ................................................................... 42, 456, 457
Moumbaris 1974 1 SA 681 (T) ...................................................................................... 287
Moyage 1958 3 SA 400 (A)............................................................................................. 65
Mphatswanyane 1980 4 SA 253 (B) .............................................................................. 536
Mphungathe 1989 4 SA 139 (O) ................................................................................... 248
Mpofana 1970 2 SA 72 (C) ........................................................................................... 338
Mpofu 1969 1 SA 334 (R) ............................................................................................. 221
Mquabuzana 1976 1 SA 212 (E) ................................................................................... 489
Mshumpa 2008 1 SACR 126 (EC) 48, 329
Msomi 2010 2 SACR 173 (KZP) .......................................................................... 266, 267
Msuida 1912 TPD 419 ................................................................................................... 339
Mtetwa 1930 NPD 285 .......................................................................................... 281, 547
Mtetwa 1963 3 SA 445 (N) ................................................................................... 540, 541
Mtetwa 1966 1 PH H250 (T) ......................................................................................... 465
Mtimunye 1994 2 SACR 482 (T) .................................................................. 450, 452, 454
Mtirara 1962 2 SA 266 (E) .................................................................................... 418, 419
Mtombeni 1993 1 SACR 591 (ZS) ........................................................................ 148, 149
Mtshali 1960 4 SA 252 (N) ........................................................................................... 507
Mtshiza 1970 3 SA 747 (A) ................................................................... 202, 203, 204, 442
Mtshizana 1965 1 PH H80 (A) ...................................................................................... 335
Mucherechdzo 1982 1 SA 215 (ZS) .............................................................................. 119
Mukwevho 2010 1 SACR 349 (SDT) ........................................................................... 429
Mula 1975 3 SA 208 (A) ............................................................................................... 242
Mulder 1954 1 SA 228 (E) .................................................................................... 379, 380
Mule 1990 1 SACR 517 (SWA) .................................................................................... 137
Muller 1934 NPD 140 ................................................................................................... 418
Muller 1948 4 SA 848 (O) ............................................................................................. 139
Muller 1953 2 SA 146 (T) ..................................................................................... 532, 534
Munonjo 1990 1 SACR 360 (A) ............................................................................ 261, 273
Munyani 1972 1 SA 411 (RA)....................................................................................... 418
Musingadi 2005 1 SACR 395 (SCA) .................................................................... 263, 264
Mutimba 1944 AD 23 .................................................................................................... 419
Muvhaki 1985 4 SA 302 (Z) .......................................................................................... 462
Myers 1948 1 SA 375 (A) ..................................................................................... 526, 531
Myeza 1962 3 SA 386 (N) ............................................................................................. 546
Myeza 1985 4 SA 30 (T) ....................................................................... 523, 526, 528, 529
Mzandi 2011 1 SACR 253 (WC)................................................................................... 480
Mzwempi 2011 2 SACR 237 (ECM) .................................................................... 256, 261

N
N 1955 2 SA 647 (T) ..................................................................................................... 419
Nabo 1968 4 SA 699 (EC) ............................................................................................... 67
Nader 1963 1 SA 843 (O) ...................................................................................... 516, 518
Naidoo 1949 4 SA 858 (A) ............................................................................................ 514
Naidoo 1966 1 PH H210 (A) ......................................................................................... 273
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Naidoo 1970 1 SA 358 (A) ............................................................................................ 517
Naidoo 1971 3 SA 605 (N) .............................................................................................. 55
Naidoo 1974 3 SA 706 (A) .................................................................................... 472, 473
Naidoo 1977 2 SA 123 (N) .................................................................................... 281, 329
Naidoo 1997 1 SACR 62 (T) ......................................................................................... 113
Naidoo 2003 1 SACR 347 (SCA) .......................................................................... 286, 443
Nair 1993 1 SACR 451 (A) ........................................................................................... 199
Naran 1963 1 SA 652 (A) .............................................................................................. 513
Naryan 1998 2 SACR 345 (W) ...................................................................................... 500
National Coalition for Gay and Lesbian Equality v Minister of Justice
1998 2 SACR 102 (W) ................................................................................................. 43
National Coalition for Gay and Lesbian Equality v Minister of Justice
1998 2 SACR 557 (CC) ..................................................................... 350, 361, 375, 382
Ncanca 1954 4 SA 272 (E) ............................................................................................ 547
Ncedani 1908 EDC 243 ................................................................................................. 398
Ncetendaba 1952 2 SA 647 (R) ............................................................................. 204, 541
Ncube 1960 2 SA 179 (R) ............................................................................................. 379
Ncube 1968 2 SA 18 (R) ............................................................................................... 541
Ncube 1984 1 SA 204 (ZS) ........................................................................................... 202
Ncube 1998 1 SACR 174 (T) ........................................................................................ 480
Ndaba 1942 OPD 149 .................................................................................................... 312
Ndalangisa 1969 4 SA 324 (E) ...................................................................................... 105
Nddlovu 1982 2 SA 202 (T) ............................................................................................ 64
Ndebele 2012 1 SACR 245 (GSJ) ................................................................... 44, 482, 483
Ndebu 1986 2 SA 133 (ZS) ................................................................................... 263, 264
Ndhlela 1956 2 SA 4 (N) ............................................................................................... 488
Ndhlovu 1965 4 SA 692 (A) .................................................................................. 235, 242
Ndhlovu 1945 AD 369................................................................................................... 437
Ndhlovu 1963 1 SA 926 (T) .......................................................................... 544, 545, 547
Ndhlovu 1972 3 SA 42 (N) ............................................................................................ 242
Ndlangisa 1969 4 SA 324 (E). ............................................................................... 465, 467
Ndlovu 1982 2 SA 202 (T) ............................................................................ 279, 281, 422
Ndlovu 1984 3 SA 23 (A) .............................................................................................. 281
Ndukiso 1945 EDL 119 ................................................................................................. 539
Nduli 1993 2 SACR 501 (A) ................................................................................. 264, 286
Ndwalane 1995 2 SACR 697 (A) .............................................................. 66, 67, 421, 427
Ndwardwa 1937 TPD 165 ............................................................................................. 313
Ndzima 2010 2 SACR 501 (ECG)................................................................................. 254
Nedzamba 1993 1 SACR 673 (V) ................................................................................. 140
Neethling 1965 2 SA 165 (O) ........................................................................ 329, 330, 331
Nel 1923 EDL 82 ................................................................................................... 395, 397
Nel 1980 4 SA 28 (E) .................................................................................................... 215
Nel 1987 4 SA 950 (T) .................................................................................................. 289
Nel 1991 1 SA 730 (A) .................................................................................. 318, 319, 326
Nene 1963 3 SA 58 (N) ................................................................................................. 318
Nene 1982 2 SA 143 (N) ............................................................................................... 140
Neuboza 1970 3 SA 558 (O) ......................................................................................... 255
Neumann 1949 3 SA 1238 (Sp Ct) ........................................................ 301, 302, 304, 305
Newman 1998 1 SACR 94 (C) .............................................................................. 280, 480
Ngcamu 2011 1 SACR 1 (SCA) .................................................................................... 281
Ngema 1992 2 SACR 651 (D) ............................................................... 220, 223, 227, 231
Ngobese 2002 1 SACR 562 (W) ................................................................... 162, 174, 175
Ngobeza 1992 1 SACR 610 (T)..................................................................... 543, 544, 547
Ngomane 1979 3 SA 859 (A) ........................................................................................ 113
 TABLE OF CASES 591

PAGE
Ngqandu 1939 EDL 213 ........................................................................................ 418, 419
Ngubane 1947 3 SA 217 (N) ......................................................................................... 313
Ngubane 1985 3 SA 677 (A) ........... 75, 178, 181, 183, 185, 186, 219, 225, 229, 231, 443
Ngubane v Chief Executive Director of Emergency Services,
Ethekwini Metropolitan Services 2013 1 SACR 48 (KZD) .............................. 105, 107
Ngubane v SA Transport Services 1991 1 SA 756 (A) ................................................. 217
Ngwenya 1979 2 SA 96 (A) .......................................................................................... 425
Nhlapo 1958 3 SA 142 (T) .................................................................................... 329, 331
Nhlapo 1981 2 SA 744 (A) .............................................................................. 93, 199, 205
Njenje 1966 1 SA 369 (RA) .......................................................................................... 255
Nkabi 1918 SR 160 ................................................................................................ 393, 394
Nkambula 1980 1 SA 189 (T) ....................................................................................... 492
Nkhumeleni 1986 3 SA 105 (V) .................................................................................... 103
Nkombani 1963 4 SA 877 (A) ....................................................... 180, 181, 189, 195, 204
Nkomo 1966 1 SA 831 (A) ............................................................................................ 261
Nkomo 1975 3 SA 598 (N) ............................................................................................ 536
Nkosi 1991 2 SACR 194 (A) ......................................................................................... 271
Nkosi 1998 1 SACR 284 (W) .......................................................................... 68, 258, 427
Nkosi 2012 1 SACR 87 (GNP) .............................................................................. 479, 480
Nkosiyana 1966 4 SA 655 (A)............................................................... 290, 291, 293, 295
Nkwana 1953 2 SA 190 (T) ........................................................................................... 514
Nkwanyana 2003 1 SACR 67 (W) ........................................................................ 124, 439
Nkwenja 1985 2 SA 560 (A) ......................................................................................... 261
Nlhovo 1921 AD 485..................................................................................... 276, 278, 296
Nomakhlala 1990 1 SACR 300 (A) ....................................................................... 264, 286
Nonkonyana 2008 2 SACR 271 (E) .............................................................................. 527
Nooroodien 1998 2 SACR 510 (NC)............................................. 254, 255, 259, 271, 288
Nortje 1955 2 PH H138 (O)........................................................................................... 398
Nortje 1996 2 SACR 308 (C) ................................................................................ 142, 145
Nossel 1937 AD 1 .......................................................................................................... 514
Nqula 2005 1 SACR 283 (E) ......................................................................................... 319
Ntanzi 1981 4 SA 477 (N) ..................................................................... 233, 261, 286, 443
Nteco 2004 1 SACR 79 (NC) ........................................................................................ 510
Ntsane 1982 3 SA 467 (T) ............................................................................................. 319
Ntsele 1997 2 SACR 740 (CC) .............................................................. 337, 424, 456, 507
Ntshwence 2004 1 SACR 506 (Tk) ............................................................................... 320
Ntsomi v Minister of Law and Order 1990 1 SA 512 (C) ............................. 106, 107, 110
Ntuli 1962 4 SA 238 (W)................................................................................................. 93
Ntuli 1975 1 SA 429 (A) ............................... 112, 113, 114, 134, 208, 225, 437, 442, 443
Nxane 1975 4 SA 433 (O) ............................................................................................. 319
Nxumalo 1960 2 SA 442 (T) ................................................................................. 312, 313
Nyalambisa 1993 1 SACR 172 (Tk) .............................................................................. 319
Nyalungu 2013 2 SACR 99 (T) ............................................................................. 279, 342
Nyokong 1975 3 SA 792 (O) ......................................................................................... 113
Nyongano 1975 1 PH H42 (R) ...................................................................................... 149
Nzo 1990 3 SA 1 (A) ..................................................................... 260, 261, 263, 264, 286

O
O 1952 3 SA 185 (T) ..................................................................................................... 290
O’Malley 1976 1 SA 469 (N) .......................................................................................... 43
Oberholzer 1941 OPD 48 ........................................................................................ 45, 424
Oberholzer 1971 4 SA 602 (A) .............................................................................. 259, 260
Odugo 2001 1 SACR 560 (W)....................................................................................... 145
592 CRIMINAL LAW

PAGE
Ohlenschlager 1992 1 SACR 695 (T) .................................................................... 260, 269
Olakawu 1958 2 SA 357 (C) ......................................................... 462, 463, 464, 466, 467
Oliphant 1950 1 SA 48 (O) .................................................................... 432, 433, 444, 445
Oliphant 1989 4 SA 169 (O) .......................................................................................... 249
Olivier 1964 3 SA 660 (N) ............................................................................................ 322
Oosthuizen 1974 1 SA 435 (C) .............................................................................. 540, 541
Opperman 1969 2 SA 181 (T) ....................................................................................... 338
Osman v Attorney-General of Transvaal 1998 1 SACR 28 (T) .................... 516, 518, 519
Osman v Attorney-General, Transvaal 1998 2 SACR 493 (CC)................................... 516
Ostilly 1977 4 SA 699 (D) ............................................................................................. 528

P
Pachai 1962 4 SA 246 (T) ..................................................................... 278, 508, 509, 510
Pakane 2008 1 SACR 518 (SCA) .......................................................................... 272, 327
Palmos 1979 2 SA 82 (A) ...................................................................................... 281, 283
Parry 1924 AD 401 ................................................................................................ 254, 267
Pasfield 1974 2 PH H92 (A) .................................................................................. 451, 454
Passtoors (unreported, WLD 15.05.1986) ..................................................... 301, 302, 304
Patel 1944 AD 511................................................................................................. 401, 405
Patel 1959 3 SA 121 (A) ........................................................................ 104, 107, 112, 113
Paterson 1907 TS 619 .................................................................................................... 380
Pather 1927 TPD 800..................................................................................................... 272
Patz 1946 AD 845 .......................................................................................................... 514
Payne 1934 CPD 301 ..................................................................................................... 463
Pearston 1940 OPD 153................................................................................................. 397
Peer 1968 4 SA 460 (N)................................................................................................. 246
Peerkhan and Lalloo 1906 TS 798................................................................................. 267
Pelser 1967 1 PH H102 (O) ........................................................................................... 530
Pepler 1927 OPD 197 .................................................................................................... 533
Peraic 1965 2 PH H201 (A) ........................................................................................... 257
Perera 1978 3 SA 523 (T) ...................................................................................... 281, 329
Perka v R [1985] 42 CR 3d 113..................................................................................... 122
Persotam 1938 AD 92 .................................................................................................... 529
Petersen 1989 3 SA 420 (A) .................................................................................. 255, 260
Peterson 1980 1 SA 938 (A) .................................................................................... 55, 120
Petzer 1992 1 SACR 633 (A) ........................................................................................ 454
Phakane 2008 1 SACR 518 (SCA) ................................................................................ 271
Phallo 1999 2 SACR 558 (SCA) ........................................................................... 271, 273
Phelan 1877 K 5............................................................................................................. 325
Philips Dairy (Pty) Ltd 1955 4 SA 120 (T) ................................................................... 246
Phillips (1896) 3 OR 216 ............................................................................................... 304
Phillips 1985 2 SA 727 (N) ................................................................................... 171, 261
Piccione 1967 2 SA 334 (N) ............................................................................................ 55
Pienaar 1990 2 SACR 18 (T) ......................................................................................... 245
Piet Arends (1891) 8 SC 176 ......................................................................................... 379
Pieterse 1923 EDL 232 .................................................................................................. 381
Pieterse 1982 3 SA 678 (A) ........................................................................................... 171
Pietersen 1983 4 SA 904 (E) ......................................................................... 162, 173, 175
Pietersen 1994 2 SACR 434 (C) .................................................................... 244, 249, 259
Pillay 1990 2 SACR 410 (CkA) ............................................................................ 318, 326
Pitje 1960 4 SA 709 (A) ................................................................................................ 318
Pitwood (1902) 19 TLR ................................................................................................... 60
Pokan 1945 CPD 169............................................................................................. 329, 331
 TABLE OF CASES 593

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Port Shepstone Investments (Pty) Ltd 1950 2 SA 812 (N) .................................... 291, 296
Port Shepstone Investments (Pty) Ltd 1950 4 SA 629 (A) .................................... 328, 331
Poswa 1986 1 SA 215 (NC)........................................................................................... 319
Potgieter 1977 3 SA 291 (O) ......................................................................................... 418
Potgieter 1979 4 SA 64 (ZRA) ...................................................................................... 534
Potgieter 1994 1 SACR 61 (A) ........................................................................................ 57
Pretoria Timber Co (Pty) Ltd 1950 3 SA 163 (A) ........................................................... 43
Pretorius 1975 2 SA 85 (SWA) ................................................................. 31, 96, 115, 118
Pretorius 2013 1 SACR 261 (WCC) .............................................................................. 371
Prince v President of the Law Society of the Cape of Good Hope
2002 1 SACR 432 (CC) ............................................................................................. 421
Prozesky (1900) 21 NLR 216 ........................................................................................ 302
Publications Control Board v William Heinemann Ltd 1965 4 SA 137 (A) ................. 434
Pule 1960 2 SA 668 (T) ................................................................................................... 67
Pule 1996 2 SACR 604 (O) ................................................................................... 142, 145

Q
Q v Most [1881] 7 QBD 244 ......................................................................................... 293
Qeqe 2012 2 SACR 141 (ECG) ............................................................................. 180, 185
Quinta 1974 1 SA 544 (T) ..................................................................................... 267, 269
Quinta 1984 3 SA 334 (C) ................................................................................. 67, 68, 442
Qumbella 1966 4 SA 356 (A) ................................................................................ 260, 261
Qumbella 1967 4 SA 577 (A) ........................................................................................ 260
Qumbu 1952 3 SA 390 (O) ............................................................................................ 534

R
R 1954 2 SA 134 (N) ..................................................................................................... 465
R 1958 3 SA 145 (T) ..................................................................................................... 291
R 1971 3 SA 798 (T) ............................................................................. 64, 66, 67, 70, 421
R 1998 1 SACR 166 (T) ........................................................................................ 453, 454
R v Nguyen (1990) 59 CCC (3d) 161 ............................................................................ 258
R v Segale 1960 1 SA 721 (A) ...................................................................................... 292
Rabodila 1974 3 SA 324 (O) ................................................................. 115, 118, 119, 120
Raisa 1979 4 SA 541 (O) ............................................................................... 202, 203, 204
Rajah 1955 3 SA 276 (A) .............................................................................................. 337
Ramagaga 1992 1 SACR 455 (B) .......................................................................... 229, 261
Ramakau 1959 4 SA 642 (O)......................................................................................... 554
Ramdas 1994 2 SACR 37 (A) ....................................................................................... 337
Ramosunya 2000 2 SACR 257 (T) ............................................................................ 85, 91
Randelhoff (1907) 22 NLR 59 ....................................................................................... 304
Randen 1981 2 SA 324 (ZA) ......................................................................................... 488
Rantsane 1973 4 SA 380 (O) ......................................................................... 193, 483, 488
Rasool 1924 AD 44 ....................................................................................................... 267
Rautenbach 1990 2 SACR 195 (N) ....................................................................... 526, 530
Re Layne and the Queen (1985) 14 CCC (3d) 149 ....................................................... 320
Re London and Globe Finance Corp Ltd (1903) 1 Ch 728 .......................................... 531
Reabow 2007 2 SACR 292 (E) ...................................................................................... 193
Reddy 1962 2 SA 343 (N) ............................................................................................. 517
Reddy 1975 3 SA 757 (A) ............................................................................................... 20
Redelinghuys 1990 1 SACR 443 (W) ........................................................................... 534
Reed 1972 2 SA 34 (R) .................................................................................................. 129
Reids Transport (Pty) Ltd 1982 4 SA 197 (E) ............................................................... 210
Renaud 1922 CPD 322 .................................................................................................. 481
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Ressel 1968 4 SA 224 (A) ............................................................................................. 530
Retief 1904 TS 63 .......................................................................................................... 514
Revill 1970 3 SA 611 (C) ...................................................................................... 468, 469
Reynecke 1972 4 SA 366 (T) ........................................................................ 495, 497, 498
Rheeder 2000 2 SACR 558 (SCA) ........................................................................ 504, 505
Richardson 1913 CPD 207 ............................................................................................ 417
Riddels 1991 2 SACR 529 (O) ...................................................................................... 249
Riekert 1977 3 SA 181 (T) ............................................................................................ 488
Roberts 1932 CPD 87 .................................................................................................... 493
Roberts 1936 1 PH H2 (G) ............................................................................................ 492
Robinson [1938] 1 All ER 301 ...................................................................................... 394
Robinson 1968 1 SA 666 (A) ........................................................................ 124, 258, 439
Robson 1991 3 SA 322 (W)............................................................................................. 98
Roets 1954 3 SA 512 (A)............................................................................................... 411
Roopsingh 1956 4 SA 509 (A) ...................................................................................... 231
Rosenthal 1980 1 SA 65 (A) .......................................................................................... 528
Rubinstein 1964 3 SA 480 (A) ...................................................................................... 518
Rudman 1989 3 SA 368 (E)........................................................................................... 547
Rudolph 1935 TPD 79 ................................................................................................... 492
Rusike 1961 2 PH H254 (R) .......................................................................................... 493
Russell 1967 3 SA 739 (N) ...................................................................................... 60, 224
Ryan v Petrus 2010 1 SACR 274 (E) ............................................................................ 464
Ryperd Boesman 1942 1 PH H63 (SWA) ..................................................................... 355

S
S 1948 4 SA 419 (G) ............................................................................................. 462, 463
S 1955 3 SA 313 (SWA) ....................................................................... 461, 462, 465, 466
S 1964 3 SA 319 (T) .............................................................................. 463, 464, 466, 467
S 1971 1 SA 591 (A) ..................................................................................................... 354
S v Peake 1962 4 SA 288 (C) ........................................................................................ 293
S 1951 3 SA 209 (C) ...................................................................................................... 355
SA Metal and Machine Co (Pty) Ltd 2010 2 SACR 413 (SCA) ................................... 246
Saaiman 1967 4 SA 440 (A) .......................................................................................... 242
Sachs 1932 TPD 201 ..................................................................................................... 325
Sachs 1953 1 SA 392 (A) ................................................................................ 44, 208, 210
Sackstein 1939 TPD 40 ................................................................................. 462, 463, 464
Safatsa 1988 1 SA 868 (A) ............................................................ 257, 258, 261, 262, 270
Saffier 2003 2 SACR 141 (SEC) ........................................................... 251, 254, 262, 267
Saffy 1944 AD 391 ........................................................................................................ 514
Sahd 1992 2 SACR 658 (E) ........................................................................................... 262
Salcedo 2003 1 SACR 324 (SCA) ................................................................................. 524
Salemane 1967 3 SA 691 (O) ................................................................................ 536, 537
Salie 1938 TPD 136 ............................................................................................... 312, 313
Salmans 2006 1 SACR 333 (C) ............................................................................. 510, 511
Salmonson 1960 4 SA 748 (T) ...................................................................................... 259
Sam 1980 4 SA 289 (T) ......................................................................................... 193, 208
Samaai 1986 4 SA 860 (C) ............................................................................................ 313
Samson v Winn 1977 1 SA 761 (C) .............................................................................. 224
Sang [1979] 2 All ER 1222 (HL) .................................................................................. 147
SANTAM v Nkosi 1978 2 SA 784 (A) ................................................. 217, 223, 224, 226
SANTAM Versekeringsmaatskappy v Swart 1987 4 SA 816 (A) ................................ 217
Sashi 1976 2 SA 446 (N) ....................................................................................... 397, 398
Sataardien 1998 1 SACR 637 (C) .......................................................................... 113, 188
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Satisky 1915 CPD 574 ................................................................................................... 498
Sauerman 1978 3 SA 761 (A) ........................................................................................ 329
Savage (1990) 91 Cr App R 317 (CA) .......................................................................... 449
Sawitz 1962 3 SA 687 (T) ............................................................................................. 513
Sayed 1981 1 SA 982 (C) .............................................................................. 233, 259, 261
Scheepers 1915 AD 337 ................................................................................................ 138
Schonken 1929 AD 36 ........................................................................................... 543, 549
Schoombie 1945 AD 541....................................................................... 279, 280, 285, 286
Schoonberg 1926 OPD 247 ........................................................................................... 463
Schoonwinkel 1953 3 SA 136 (C) ................................................................................... 55
Schwartz 1971 4 SA 30 (T) ........................................................................................... 448
Schwartz 1980 4 SA 588 (T) 592 .......................................................................... 504, 506
Scott-Crosby 2008 1 SACR 223 (SCA) ........................................................................ 271
Scoulides 1956 2 SA 388 (A) ........................................................................ 495, 496, 497
Seabe 1927 AD 28 ................................................................................................. 528, 535
Sedat 1916 TPD 431 .............................................................................................. 533, 534
Seeiso 1958 2 SA 231 (GW) ................................................................................. 504, 505
Segale 1960 1 SA 721 (A) ............................................................................................. 294
Segopotsi 1960 2 SA 430 (T) ........................................................................................ 313
Selebi 2012 1 SACR 209 (SCA) ................................................................... 404, 410, 411
Senyane 1993 1 SACR 643 (O) ..................................................................................... 319
Senyolo 2010 2 SACR 571 (GHJ) ................................................................................... 49
Sephume 1948 3 SA 982 (T) ......................................................................................... 435
Sepiri 1979 2 SA 1168 (NC) ................................................................................. 513, 515
September 1996 1 SACR 325 (A) ................................................................................. 248
Seweya 2004 1 SACR 387 (T) ...................................................................................... 466
Sexaba 1957 4 SA 280 (E)............................................................................................. 500
Seymour 1998 1 SACR 66 (N) ...................................................................................... 229
Shaban 1965 4 SA 646 (W) ........................................................................................... 525
Shahmohamed v Hendriks 1920 AD 151 ...................................................................... 541
Shaik 1983 4 SA 57 (A)................................................................................. 180, 257, 258
Shaik 2007 1 SACR 142 (D) ................................................................................. 408, 410
Shakane 1998 2 SACR 218 (SCA) ........................................................................ 517, 518
Shandu 1927 TPD 786 ................................................................................................... 481
Shapiro 1987 2 SA 482 (B) ........................................................................................... 318
Sharp 2002 1 SACR 360 (Ck) ....................................................................... 461, 464, 467
Sharpe 1903 TS 868............................................................................................... 280, 296
Shasha 1996 2 SACR 73 (Tk) ............................................................................... 379, 380
Shaw (1884) 3 EDC 323 ........................................................................................ 468, 469
Shaw 1960 1 PH H184 (G) ............................................................................................ 493
Shaw v Hendry 1927 CPD 357 ........................................................................................ 64
Shein 1925 AD 6 ........................................................................................................... 542
Shelembe 1955 4 SA 410 (N) ........................................................................................ 541
Shepard 1967 4 SA 170 (W) .......................................................................... 137, 530, 531
Shephard [1919] 2 KB 125 ............................................................................................ 294
Sherman v United States (1958) 356 US 369 ................................................................ 147
Shevill 1964 4 SA 51 (RA) ...................................................................................... 58, 223
Shezi 1948 2 SA 119 (A) ............................................................................................... 258
Shikuri 1939 AD 225 ..................................................................................................... 268
Shivute 1991 1 SACR 656 (Nm) ................................................................................... 223
Shole 1960 4 SA 781 (A)....................................................................................... 336, 337
Shongwe 1966 1 SA 390 (RA) ...................................................................................... 335
Shorty 1950 SR 280 ....................................................................................................... 272
Sibanyone 1940 JS 40 (T).............................................................................................. 447
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Sibiya 1955 4 SA 247 (A) ....................................... 44, 475, 486, 488, 492, 493, 497, 502
Sibiya 1957 1 SA 247 (T) .............................................................................................. 291
Sibiya 1984 1 SA 91 (A) ............................................................................................... 171
Sibuyi 1993 1 SACR 235 (A) ................................................................................ 287, 289
Sigwahla 1967 4 SA 566 (A) ......................................................................... 180, 188, 437
Sikhakane 1985 2 SA 289 (N) ....................................................................................... 453
Sikunyana 1961 3 SA 549 (E) ............................................................................... 124, 125
Sikweza 1974 4 SA 732 (A) .................................................................................. 178, 180
Silber 1952 2 SA 475 (A) ...................................................................................... 319, 326
Sillas 1959 4 SA 305 (A) ................................................................................................. 49
Singh 1960 3 SA 489 (E) ............................................................................................... 514
Singiswa 1981 4 SA 403 (C) ................................................................................... 64, 421
Singo 1993 2 SA 765 (A) ...................................................................................... 263, 264
Sinzani 1979 1 SA 935 (E) ............................................................................................ 452
Sipendu 1932 EDL 312 ................................................................................................. 514
Sita 1954 4 SA 20 (E) ............................................................................................ 395, 399
Sithole 1981 1 SA 1186 (N) .................................................................................. 510, 511
Sitole 1957 4 SA 691 (N) .............................................................................................. 508
Sixishe 1992 1 SACR 620 (CkA) .................................................................................. 137
Skenke 1916 EDL 225 ................................................................................................... 481
Skhosana 1973 1 SA 322 (O) .......................................................................................... 65
Slabb 2007 1 SACR 77 (C) ................................................................................... 543, 550
Slater (1901) 18 SC 253 ................................................................................................ 533
Small 2005 2 SACR 300 (C) ......................................................................................... 547
Smit 2007 2 SACR 335 (T) ............................................................................................. 40
Smith (1900) 17 SC 561 ................................................................................................ 136
Smith 1918 CPD 260 ..................................................................................................... 432
Smith 1965 4 SA 166 (C) ................................................................................................ 68
Smith 1973 3 SA 945 (O) ................................................................................................ 45
Smith 1984 1 SA 583 (A) .............................................................................................. 290
Smith 2003 2 SACR 135 (T) ......................................................................................... 454
Snyders v Louw 2009 2 SACR 463 (C) ................................................ 103, 106, 112, 113
Sokoyi 1984 3 SA 935 (NC) .................................................................................. 319, 326
Solomon 1953 4 SA 518 (A) ................................................................................. 497, 498
Solomon 1973 4 SA 644 (C) ................................................................................... 39, 539
Solomon 1986 3 SA 705 (A) ......................................................................................... 424
Solomon v Law Society of the Cape of Good Hope 1934 AD 407 ............................... 248
Solomon v Visser 1972 2 SA 327 (C) ............................................................................. 64
Solomons 2004 1 SACR 137 (C)........................................................................... 319, 320
Sonpra 2004 1 SACR 278 (T) ............................................................................... 319, 326
Soqokomashe 1956 2 SA 142 (E) .................................................................................. 542
Sorrels v United States (1932) 287 US 435 ................................................................... 147
Sotsu 2001 1 SACR 428 (Tk) ........................................................................................ 428
Southern 1965 1 SA 860 (N) ................................................................................. 223, 224
Speedy 1985 2 SA 782 (A) ............................................................................................ 488
Stassen 1965 4 SA 131 (T) .............................................................................................. 44
State v Roy 233 NC 558 64 SE 2nd 840 (1951) ............................................................ 137
Stavast 1964 3 SA 617 (T)............................................................................................... 88
Steenberg 1999 1 SACR 594 (N) .................................................................................. 464
Steenkamp 1960 3 SA 680 (N) ...................................................................................... 452
Stellmacher 1983 2 SA 181 (SWA)................................................................. 55, 166, 168
Stevenson 1976 1 SA 636 (T) ........................................................................................ 536
Stewart 1903 TS 456 ..................................................................................................... 541
Steyn 1927 OPD 172 ..................................................................................................... 534
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PAGE
Steyn 1964 1 SA 845 (O)............................................................................................... 263
Steyn 2010 1 SACR 411 (SCA) .................................................... 102, 106, 107, 110, 113
Stojilkovic 1995 1 SACR 435 (T) ................................................................................. 247
Strauss 1948 1 SA 934 (A) .................................................................................... 303, 304
Strydom 1952 2 SA 397 (T) .......................................................................................... 479
Strydom 1962 3 SA 982 (N) .......................................................................................... 526
Swanepoel 1983 1 SA 434 (A) ...................................................................................... 178
Swanepoel 1985 1 SA 576 (A) ...................................................................................... 135
Swarts 1961 4 SA 589 (G) ............................................................................................. 529

T
T 1960 4 SA 685 (T) ...................................................................................................... 387
T 1986 2 SA 112 (O) ............................................................................................. 110, 227
Talane 1986 3 SA 196 (A) ............................................................................. 178, 258, 261
Tanoa 1955 2 SA 613 (O) .............................................................................. 328, 329, 331
Tanteli 1975 2 SA 772 (T) ..................................................................................... 462, 463
Tarusika 1959 R and N 51 ............................................................................................. 489
Tau 1996 2 SACR 97 (T)....................................................................... 479, 480, 489, 490
Teddy Bear Clinic for Abused Children v Minister of Justice and
Constitutional Development CCT 12/13 [2013] ZACC 35 ....................... 384, 386, 388
Teichert 1958 3 SA 747 (N) .................................................................................. 536, 537
Tembani 1999 1 SACR 192 (W) ............................................................................... 85, 87
Tembani 2007 1 SACR 355 (SCA) ......................................................... 81, 83, 87, 91, 92
Temmers 1994 1 SACR 357 (C) ........................................................................... 545, 546
Terblanche 1933 OPD 65 .............................................................................................. 462
Terblanche 1938 EDL 112............................................................................................. 312
Terblanche 2007 1 SACR 545 (C)................................................................................. 507
Terblanche 2011 1 SACR 77 (EC) ................................................................................ 271
Texeira 1980 3 SA 755 (A) ................................................................................... 105, 106
Thabeta 1948 3 SA 218 (T) ................................................................................... 279, 530
Thabo Meli [1954] 1 All ER 373 (PC) .................................................................... 93, 195
Thebe 1981 1 SA 504 (B) .............................................................................................. 488
Thebus 2003 2 SACR 319 (CC) .................................................................... 257, 258, 262
Theledi 1992 1 SACR 336 (T)................................................................................... 40, 41
Thenkwa 1970 3 SA 529 (A) ......................................................................................... 224
Theron 1936 OPD 166 ................................................................................................... 138
Theron 1968 4 SA 61 (T)............................................................................................... 338
Thody 1971 2 SA 213 (N) ............................................................................................... 53
Thomas 1922 EDL 194 .................................................................................................. 492
Thomas 1925 EDL 248 .................................................................................................. 398
Thomas 1928 EDL 401 .................................................................................................. 105
Thomas 1954 1 SA 185 (SWA) ..................................................................................... 129
Thomo 1969 1 SA 385 (A) .................................................................................... 254, 260
Thompson 1905 ORC 127 ............................................................................................. 545
Thompson 1968 3 SA 425 (E) ............................................................................... 330, 331
Thooe 1973 1 SA 179 (O) ............................................................................................. 325
Timol 1959 1 PH H47 (N) ............................................................................................. 533
Timol 1974 3 SA 233 (N) .............................................................................................. 268
Tissen 1979 4 SA 293 (T) .............................................................................................. 202
Tobias 1966 1 SA 656 (N) ............................................................. 316, 318, 319, 322, 323
Tobie (1899) 16 CLJ 45 (O) .......................................................................................... 396
Torch Printing and Publishing Co (Pty) Ltd 1956 1 SA 815 (C) .......................... 323, 326
Trainor 2003 1 SACR 35 (SCA) ........................................................................... 108, 110
598 CRIMINAL LAW

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Trickett 1973 3 SA 526 (T) ....................................................................... 55, 58, 168, 231
Tromp 1966 1 SA 646 (N) ..................................................................... 316, 322, 325, 326
Tromp v Tromp 1956 3 SA 664 (N) .............................................................................. 325
Troskie 1920 AD 466 .................................................................................................... 379
Tshabalala 1921 AD 13 ......................................................................................... 443, 444
Tshabalala 2002 1 SACR 605 (W) ................................................................................ 140
Tshabalala v Jacobs 1942 TPD 310 ............................................................................... 139
Tshayitsheni 1918 TPD 23 ............................................................................................ 312
Tshoba 1989 3 SA 393 (A) .................................................................................... 528, 529
Tshwape 1964 4 SA 327 (C) ................................................................................. 208, 269
Tsotitsie 1953 1 SA 239 (T) .................................................................................. 516, 517
Tsotsi 2004 2 SACR 273 (NC) ...................................................................................... 456
Tsotsobe 1983 1 SA 856 (A) ................................................................................. 301, 304
Tsotsotso 1976 1 SA 364 (O) ........................................................................................ 242
Tungata 2004 1 SACR 558 (Tk) .................................................................................... 287
Tusi 1957 4 SA 553 (N)................................................................................................. 547
Twala 1979 3 SA 864 (T) .............................................................. 289, 308, 309, 310, 311

U
Uirab 1970 2 PH H172 (SWA) ...................................................................................... 489
Umfaan 1908 TS 62 ............................................................................................... 461, 462
United States v Balint (1922) 258 US 250 .................................................................... 258
United States v Bevans 24 Fed Cases 1183 No 14, 589 (CC Mass 1816) .................... 137
Usayi 1981 2 SA 630 (ZS)............................................................................................. 313

V
V 1979 2 SA 656 (A) ............................................................................................. 242, 248
Valachia 1945 AD 826 .................................................................................................. 437
Vallabh 1911 NPD 9 ...................................................................................................... 333
Van Aardt 2009 1 SACR 648 (SCA) ....................................................... 60, 178, 180, 187
Van Antwerpen 1976 3 SA 399 (T) ............................................................... 111, 112, 460
Van As 1967 4 SA 594 (A)........................................................................ 83, 89, 224, 227
Van As 1976 2 SA 921 (A)............................................ 150, 217, 220, 224, 225, 227, 442
Van Aswegen 1992 1 SACR 487 (O) ............................................................................ 528
Van Biljon 1965 3 SA 314 (T) .............................................................................. 189, 531
Van Coller 1970 1 SA 417 (A) ...................................................................................... 486
Van den Berg 1948 2 SA 836 (T) .................................................................................... 88
Van den Berg 1979 3 SA 1027 (NC) ..................................................................... 491, 493
Van der Bank 1941 TPD 307......................................................................................... 514
Van der Berg 2009 1 SACR 661 (HHA) ....................................................................... 145
Van der Merwe 1974 4 SA 310 (E) ....................................................................... 140, 425
Van der Walt 1946 GWL 42 .......................................................................................... 487
Van der Westhuizen 1951 2 SA 338 (C) ......................................................................... 53
Van der Westhuizen 1965 1 SA 773 (T) ....................................................................... 491
Van der Westhuizen 1974 4 SA 61 (C) ......................................................................... 405
Van der Westhuizen 1976 2 PH H194 (C) .................................................................... 541
Van Heerden 1984 1 SA 667 (A) .................................................................................. 491
Van Heerden 2010 1 SACR 529 (EC) ............................................................................. 89
Van Meer 1923 OPD 77 ........................................................................................ 465, 467
Van Niekerk 1918 GWL 89 ........................................................................... 471, 473, 474
Van Niekerk 1970 3 SA 655 (T).................................................................... 316, 323, 326
Van Niekerk 1972 3 SA 711 (A) ........................................................... 316, 321, 323, 329
Van Niekerk 1980 1 SA 594 (O) ........................................................................... 533, 535
 TABLE OF CASES 599

PAGE
Van Niekerk 1981 3 SA 787 (T).................................................................................... 526
Van Rensburg 1987 3 SA 35 (T) ....................................................................... 55, 58, 231
Van Rooyen 2002 1 SACR 661 (T) ........................................................................... 40, 41
Van Schoor 1948 4 SA 349 (C) ............................................................................. 224, 227
Van Staden 1973 1 SA 70 (SWA) ......................................................................... 326, 327
Van Tonder 1932 TPD 90.............................................................................................. 463
Van Vuuren 1961 3 SA 305 (E) .................................................................................... 105
Van Vuuren 1983 1 SA 12 (A) .............................................................................. 242, 254
Van Wyk 1931 TPD 41 ................................................................................................. 380
Van Wyk 1967 1 SA 488 (A) ................................................ 105, 106, 108, 109, 110, 111
Van Wyk 1969 1 SA 615 (C) ........................................................................................ 530
Van Wyk 1974 1 SA 36 (A) .......................................................................................... 140
Van Wyk 1992 1 SACR 147 (Nm) ........................................................................ 178, 180
Van Wyk 2000 2 SACR 693 (O) ................................................................................... 318
Van Zyl [1996] 1 All SA 336 (W) ......................................................................... 120, 208
Van Zyl 1942 TPD 291.......................................................................................... 279, 280
Van Zyl 1944 SWA 1 .................................................................................................... 398
Van Zyl 1975 2 SA 489 (N) .................................................................................. 140, 425
Van Zyl 1987 1 SA 497 (O) .......................................................................................... 542
Van Zyl 1993 1 SACR 338 (C) ..................................................................................... 459
Van Zyl 1996 2 SACR 22 (A) ....................................................................................... 248
Vanmali 1975 1 SA 17 (N) .................................................................................... 267, 269
Velumurugen 1985 2 SA 437 (D) .......................................................................... 271, 272
Venter 1961 1 SA 363 (T) ............................................................................................. 554
Vermaak (1900) 21 NLR 204 ........................................................................................ 304
Verwey 1968 4 SA 682 (A) ..................................................................................... 45, 495
Victor 1943 TPD 77................................................................................................. 55, 231
Vilakasi 1999 2 SACR 393 (N) ..................................................................................... 493
Vilakazi 1933 TPD 198 ................................................................................................. 533
Vilakazi 1959 4 SA 700 (N) .................................................................................. 513, 536
Vilakazi 1967 2 PH H280 (N) ....................................................................................... 487
Vilinsky 1932 OPD 218................................................................................................. 281
Viljoen 1923 AD 90....................................................................... 302, 304, 309, 311, 312
Viljoen 1939 OPD 52 .................................................................................................... 491
Viljoen 1941 AD 366..................................................................................................... 542
Viljoen 1970 1 SA 14 (T) .............................................................................................. 331
Viljoen 1992 1 SACR 601 (T) ......................................................................................... 55
Visagie 1991 1 SA 177 (A) ................................................... 476, 485, 495, 496, 497, 499
Visagie 2009 2 SACR 70 (W) ....................................................................................... 140
Vittee 1958 2 PH H348 (T) ........................................................................................... 329
Volschenck 1968 2 PH H283 (D) .......................................................................... 126, 354
Von Elling 1945 AD 234 ............................................................... 274, 475, 500, 501, 514
Von Molendorff 1987 1 SA 135 (T) .................................................................. 44, 45, 418
Von Zell 1953 3 SA 303 (A) ......................................................................................... 166

W
W 1949 3 SA 772 (A) .................................................................................................... 268
W 1953 3 SA 52 (SWA) ................................................................................................ 434
W 1976 1 SA 1 (A) ........................................................................................................ 281
W 1991 2 SACR 642 (T) ............................................................................................... 406
W 1994 2 SACR 777 (N)............................................................................................... 493
W 1995 1 SACR 606 (A)............................................................................................... 329
Waglines (Pty) Ltd 1986 4 SA 1135 (N) ............................................................... 210, 233
600 CRIMINAL LAW

PAGE
Walker 1978 4 SA 588 (C) ............................................................................................ 424
Wallace 1927 TPD 557 .................................................................................................. 267
Wallace 1959 3 SA 828 (R) ................................................................................... 333, 335
Wallendorf 1920 AD 383 .............................................................................................. 150
Walton 1958 3 SA 693 (R) .................................................................... 461, 464, 466, 469
Wannenburg 2007 1 SACR 27 (C) ........................................................................ 266, 267
Watson 1961 2 SA 283 (R) ............................................................................................ 327
WC and MJ Botha (Edms) Bpk 1977 4 SA 38 (T) ........................................................ 259
Weinberg 1939 AD 71 ................................................................................................... 262
Weiss 1934 AD 41 ......................................................................................................... 498
Wells 1949 3 SA 83 (A) ................................................................................................ 217
Wenzel 1940 WLD 269 ................................................................................. 302, 305, 306
Werner 1947 2 SA 828 (A) .................................................................................... 122, 208
Wessels 1933 TPD 313 .................................................................................................. 497
Western Areas Ltd 2004 1 SACR 429 (W) ............................................................. 36, 525
Whitehead 2008 1 SACR 431 (SCA) .................................................................... 262, 311
Wiese 1928 TPD 149 ..................................................................................................... 267
Wiid 1990 1 SACR 561 (A) .................................................. 157, 158, 159, 164, 199, 252
Wilkens 1941 TPD 276 ................................................................................. 257, 312, 313
Williams [1923] 1 KB 340 .................................................................................... 126, 354
Williams 1931 1 PH H38 (E)................................................................................. 126, 354
Williams 1956 2 PH H192 (G) ...................................................................................... 549
Williams 1970 2 SA 654 (A) ......................................................................................... 260
Williams 1980 1 SA 60 (A) ................... 250, 251, 252, 253, 259, 266, 267, 268, 269, 270
Williams 1986 4 SA 1188 (A) ................................................................................... 87, 91
Williams 1995 2 SACR 251 (CC) ................................................................................. 356
Williams 1998 2 SACR 191 (SCA) ......................................................................... 59, 271
Williams 7 HCG 247 ..................................................................................................... 481
Williamson 1972 2 SA 140 (N) ..................................................................................... 257
Windvogel 1998 1 SACR 125 (C) ................................................................................. 258
Witbooi 1984 1 SA 242 (C) ................................................................................... 510, 511
Woodrow 1999 2 SACR 109 (C)........................................................................... 543, 550

X
X 1974 1 SA 344 (RA) .......................................................................................... 122, 270
Xabanisa 1946 EDL 167 ................................................................................................ 461
Xabendlini (case no 608/10 [2011] SASCA 86) ........................................................... 459
Ximba 1969 2 PH H223 (N) .......................................................................................... 450
Xinwa 1970 2 PH H171 (NC) ....................................................................................... 489
Xulu 1943 AD 616......................................................................................................... 202
Xybele 1958 1 SA 157 (T)............................................................................................. 313

Y
Yelani 1989 2 SA 43 (A) ............................................................................................... 260
Yengeni 2006 1 SACR 405 (T) ..................................................................................... 525
Yolelo 1981 1 SA 1002 (A) ........................................................................................... 510
Youngleson (1) 1948 1 SA 819 (W) ................................................................................ 85

X
Z 1960 1 SA 739 (A) ............................................................. 123, 126, 191, 353, 355, 356
Zackon 1919 AD 175............................................................................. 328, 330, 331, 335
Zamisa 1990 1 SACR 22 (W) ........................................................................................ 544
 TABLE OF CASES 601

PAGE
Zeelie 1952 1 SA 400 (A) ...................................................................... 290, 291, 296, 376
Zemura 1974 1 SA 584 (RA)......................................................................................... 211
Zikalala 1953 2 SA 568 (A)................................................................................... 106, 107
Ziki 1965 4 SA 14 (E) ................................................................................................... 554
Zinn 1969 2 SA 537 (A) ............................................................................................ 19, 20
Zondo 1999 1 SACR 54 (N) .......................................................................................... 551
Zulu 1951 3 SA 44 (N) .................................................................................................. 519
Zuma 1992 2 SACR 488 (N) ......................................................................................... 517
Zuma 1995 1 SACR 568 (CC)....................................................................................... 337
Zuma 1995 2 SA 642 (CC) ............................................................................................ 456
Zungo 1966 1 SA 268 (N) ............................................................................................. 318
Zurich 2010 1 SACR 171 (SCA) ................................................................................... 145
Zwakala 1966 2 PH H378 (T) ....................................................................................... 419
Zwane 1987 4 SA 369 (W) ............................................................................ 308, 310, 311
Zwane 1989 3 SA 253 (W) ............................................ 287, 289, 302, 305, 306, 310, 334
Zwezwe 2006 2 SACR 599 (N) ..................................................................................... 453
 INDEX

PAGE PAGE
A accomplices – continued
abduction...................................... 395–399 definition of .................................... 166
control of parents or guardian ......... 397 distinguished from
definition ......................................... 395 perpetrator............ 249–251, 265–266
elements of crime ............................ 395 intention .......................................... 269
intention .......................................... 399 meaning of ...................................... 266
legal interest protected .................... 396 murder, in................................ 269–270
origin and character................. 395–396 punishment...................................... 270
requirements for liability as .... 266–269
person below 18 years ..................... 395
act, requirement of ............................. 1–58
purpose of removal ......................... 397
absolute force .............................. 54–55
removal of minor............................. 396
antecedent liability ...................... 57–58
without consent of parents or automatism (and see
guardian ............................... 398–399 automatism) ............................. 55–57
aberratio ictus .............................. 193–196 basis of liability ................................ 52
concrete figure approach ......... 193–196 definitional elements......................... 52
description of .................................. 193 human ............................................... 53
judging such situations .................... 196 intention not part of .......................... 54
transferred intention ........................ 193 intoxication, exclusion of ....... 220, 227
two opposing approaches ........ 193–194 involuntary .................................. 54–57
abolition of death sentence, muscular movement not an act ... 53–54
criticism of .................................... 26–29 omissions (and see omissions) .... 58–62
absolute force ................................... 54–55 possession, in crimes of
absolute liability – see strict liability (and see possession) ................ 62–70
accessories – see accomplices thoughts not punishable .................... 53
accessory after fact .............. 251, 271–274 vis absoluta ......................... 54–55, 117
accessory nature of .................. 272–274 vis compulsiva............................. 54–55
assisting perpetrator to evade voluntary ........................................... 54
liability ................................. 271–272 actio libera in causa .................... 217–218
definition ......................................... 271 administering poison or
general ............................................. 271 other noxious substance ............ 443–444
intention .......................................... 272 affidavit, making false statement in..... 338
punishment ...................................... 274 age, youthful – see immature age
reason for existence questionable ... 274 aider and abettor .................................. 252
accomplices.................. 250–251, 265–270 ammunition, possession of .......... 430–431
accessory nature of .................. 266–267 amnesia, effect of ............................ 55–57
act furthering commission of analogous interpretation of criminal
crime .................................... 267–268 provisions not allowed .................. 45–48

603
604 CRIMINAL LAW

PAGE PAGE
anger – see non-pathological criminal attempt – continued
incapacity, provocation summary of rules relating to ........... 277
animus detentionis ................................. 65 voluntary withdrawal .............. 284–286
animus domini .................................. 66, 69 autographic crimes ........................ 79, 262
animus ex re commodum acquirendi ..... 66 automatism ...................................... 55–57
animus furandi ............................. 477, 484 awareness of unlawfulness .......... 197–204
animus hostilis ............................. 304–306 awareness of wrongfulness .......... 197–204
animus possidendi .................................. 67
animus rem sibi habendi .................. 66–67 B
animus tenendi ................................. 65–67 bestiality ...................................... 381–382
antecedent liability ........................... 57–58 bigamy ......................................... 393–395
arm pointing – see pointing a firearm customary marriages ....................... 394
arrest, use of force or homicide definition ......................................... 393
during ........................................ 129–134 elements of crime............................ 393
basic requirements for defence ....... 130 intention .......................................... 394
deadly force ............................. 131–132 rationale .......................................... 393
excessive force during arrest ........... 131 second marriage ceremony ............. 394
general ............................................. 129 valid marriage,
ground of justification ..................... 133 subsistence of....................... 393–394
ignorance of law as defence ............ 133 Bill of Rights, effect of
imminent death or harm .................. 132 bestiality.................................. 381–382
necessary conduct ........................... 131 chastisement of children ......... 137–138
proof, onus of .................................. 134 commentary on case which is
proportionality requirement ............ 131 sub iudice ..................................... 321
proviso in s 49(2) .................... 131–132 contempt of court in facie
s 2(a), wording of ............................ 132 curiae ................................... 319–320
s 2(b), wording of .................... 132–133 corporate bodies, liability of director
s 49, wording of .............................. 130 or servant ..................................... 247
arrogation of possession ...................... 492 courts may not create crimes ...... 38–39
arson ..................................................... 542 crimes may not be created with
assault in course of arrest – see arrest, retrospective effect ............ 38, 41–42
use of force or homicide during crimes must be clearly
association of persons, liability of – formulated.......................... 38, 42–43
see corporate bodies, liability of death sentence, plea for
attempt ......................................... 275–289 reintroduction .......................... 26–29
assault, in definitions of crimes must be
commencement of strictly interpreted .............. 38, 43–48
consummation ...................... 280–281 failure to give account of goods
completed ................................ 278–279 suspected of being stolen ............. 516
culpable homicide not possible ....... 286 general description ........................ 9–10
execution, acts of .................... 280–281 high treason, definition of ....... 306–307
factual situations ............................. 277 killing another in necessity,
fraud, in ........................................... 543 role in ........................................... 129
high treason, in ................................ 300 killing in protection of property...... 109
impossible ............................... 281–282 legality principle contained in .......... 38
intention .......................................... 286 public indecency ..................... 433–434
interrupted ............................... 279–281 receiving stolen goods without
preparation, acts of .......................... 280 reasonable cause .......................... 520
prohibition of .................................. 276 scandalising the court ............. 323–324
punishment ...................................... 286 strict liability,
putative crime.......................... 282–283 constitutionality of ....................... 238
rules relating to, summary of .......... 277 surge of crime and ...................... 24–26
subjective and objective unlawfulness, meaning of, role in ..... 98
approaches ........................... 277–278 births, concealment of ......................... 432
 INDEX 605

PAGE PAGE
blameworthiness – see culpability chastisement, disciplinary, as
boni mores ............................................. 98 justification – continued
bonus paterfamilias ............................. 210 schools, in, not allowed .................. 137
bribery – see corruption spouse has no right to ..................... 138
teachers have no right to ................. 137
C child pornography, displaying ............. 373
capacity – see criminal capacity children (and see immature age)
capital punishment abolished, chastisement of ....................... 137–138
criticism of .................................... 26–29 consent to sexual
causa causans ........................................ 84 acts, by ......................... 125–126, 355
causation .......................................... 79–94 criminal capacity of ................ 173–175
abnormal physiological exploitation, sexual, of............ 338–389
condition of victim ......................... 93 grooming, sexual, of ....................... 389
adequate .......................... 85–86, 88–89 negligence, test for .......................... 213
causa causans ................................... 84 offences against ...................... 383–390
common purpose, and ....................... 89 penetration of, consensual ...... 383–387
conditio sine qua non .................. 81–83 pornography displayed to ....... 389–390
direct cause........................................ 84 pornography, using
effective cause ................................... 84 children for .......................... 389–390
factual .......................................... 81–83 violation of, consensual .......... 387–388
foreseeablity theory ..................... 87–88 childstealing – see kidnapping
formally and materially defined combination theory of punishment ... 19–20
crimes ....................................... 79, 80 common assault – see assault
fraud, in ........................................... 530 common-law abduction – see abduction
immediate cause ................................ 84 common purpose, doctrine of ...... 255–264
individualisation theories .................. 84 active association .................... 259–260
legal ............................................. 83–89 autographic crimes,
medical treatment, effect of ........ 90–93 not applicable in .......................... 262
mistake relating to chain of ..... 189–194 causation, proof of unnecessary...... 258
multiple causes of same constitutionality of .................. 262–263
condition ........................................ 89 culpable homicide, role in............... 261
novus actus definition ......................................... 256
interveniens .................. 86–87, 89–94 dolus eventualis and........................ 261
omission, by ...................................... 89 general .................................... 257–258
policy considerations ........................ 88 instrumentality of own body ........... 262
precipitating death ....................... 80–91 principles relating to,
proximate cause ................................ 84 summary of .......................... 256–257
subsequent conduct of accused ......... 93 Safatsa, judgment in ............... 258–259
subsequent conduct of third withdrawal from ..................... 263–264
party ......................................... 90–93 company, liability of – see corporate
subsequent conduct of victim...... 89–90 bodies, liability of
substantial cause................................ 84 compelled rape ............................ 358–360
suicide, incitement to ........................ 90 compelled self-sexual assault ...... 369–371
summary of rules............................... 79 compelled sexual assault ............. 368–369
theories of.................................... 81–88 compelling someone to watch
chain of causation, mistake sexual acts ................................. 371–272
relating to .................................. 189–192 compulsion – see necessity
chastisement, disciplinary, concealment of births .................. 432–433
as justification ........................... 137–138 conditio sine qua non ...................... 81–83
employer has no right to ................. 138 conduct see act, requirement of,
general ............................................. 138 omission and possession
moderation required ........................ 138 conflicting statements in
parents’ right to ............................... 138 different oaths ........................... 336–338
private schools, in ........................... 137 conscious negligence ................... 183, 215
606 CRIMINAL LAW

PAGE PAGE
consent ......................... 122–127, 351–454 contempt of court – continued
abuse of authority .................... 353–354 contempt in facie curiae ......... 317–319
assault, in................................. 124–125 definition ......................................... 315
awareness of true and material elements of crime............................ 315
facts ...................................... 126, 348 ex facie curiae ................................. 317
before commission of act ................ 127 failure to appear in court ................. 322
crimes in respect of which defence failure to appear with court order ... 325
may apply............................. 124–125 in facie curiae ......................... 317–319
error in negotio ....................... 126, 348 intention .................................. 326–327
error personae ........................ 126, 348 interfering with presiding officer .... 322
euthanasia ................................ 124, 435 interfering with witnesses ............... 322
expressly or tacitly .......................... 126 negligence may suffice ........... 326–327
force, effect of ................. 125, 346–347 newspaper editor,
fraud, effect of ................................. 354 liability of ............................ 326–327
general ..................................... 122–123 obstructing court officials ............... 325
intimidation, effect of...... 125, 352–353 pending case,
medical treatment ............................ 125 commentary on .................... 320–322
mental abilities of person publication of matter which is
consenting ............................ 126, 354 sub iudice ............................. 320–322
murder, in ................................ 124, 441 rationale of crime ............................ 316
party who may give ......................... 127 scandalising court ................... 322–324
rape, in..................................... 351–354 simulating court process ................. 325
requirements ............ 123–127, 351–354 unlawfulness ................................... 326
sexual assault, in ............. 125, 367–368 unusual features ...................... 315–316
sport, effect of participating in ........ 125 contrectatio .......................................... 477
submission not consent ................... 126 corporal punishment – see chastisement,
theft, in ............................................ 484 disciplinary
threats, effect of .............. 125, 352–353 corporate bodies, liability of ........ 235–248
voluntarily given ..... 125–126, 352–353 appearance at trial ........................... 247
conspiracy .................................... 286–289 association of persons ............. 247–248
act ............................................ 287–289 desirability of punishing ......... 235–236
agreement ................................ 287–288 director or servant no longer
attempt, overlapping with ....... 301–302 liable ............................................ 247
chain ................................................ 288 general ............................................ 235
express or tacit ................................ 288 liability of corporate body for
high treason, in ................................ 312 act of director or servant ...... 246–247
intention .......................................... 289 plea.................................................. 247
prohibition of .................................. 286 punishment...................................... 247
punishment ...................................... 289 corpse, sexual act with......................... 383
purpose of prohibition ..................... 286 corpse, violation .................................. 436
successful ........................................ 287 corruption .................................... 401–417
umbrella spoke ................................ 288 acceptance by recipient ........... 404–405
constitutionality of certain rules – see accessories after fact ....................... 412
Bill of Rights, effect of accomplices .................................... 412
construction of criminal attempt ............................................ 412
liability .......................... 29–35, 555–556 conspiracy ....................................... 412
contemporaneity, principle of ...... 148–149 definition in Act .............................. 402
contempt of court ......................... 315–327 elements of crime by giver ............. 413
administration of justice elements of crime by recipient........ 404
by courts....................................... 325 failure to report corruption ............. 417
classification of ways of committing general ............................................ 401
crime ............................................ 317 giver and receiver ........................... 403
constitutional giver, crime committed by ...... 413–415
dimensions ................... 319–321, 324 giving of gratification ..................... 414
 INDEX 607

PAGE PAGE
corruption – continued criminal capacity – continued
gratification ............................. 405–406 provocation, and ............. 159–164, 232
historical .................................. 401–402 psychological requirements for ...... 157
incitement ........................................ 412 youth – see immature age
inducement ...................................... 412 criminal defamation ..................... 467–469
intention of recipient ............... 410–412 definition ......................................... 467
presumption of inducement..... 408–410 elements of crime............................ 467
proof of inducement ................ 408–410 existence of crime
punishment .............................. 412–413 confirmed ............................. 469–470
recipient................................... 404–413 origin ....................................... 567–568
specific categories of............... 415–417 publication of defamatory matter.... 469
unlawfulness ................................... 410 unlawfulness ................................... 469
creation of crimes, courts may not ......... 39 criminal law, place of in legal system ..... 3
crime and offence .................................... 5 criminal liability
crime distinguished from delict ........... 3–5 construction of ............ 29–35, 555–556
crime statistics ................................. 21–26 summary of ................................. 29–35
crimen expositionis infantis ................. 444 crisis in criminal justice system....... 20–29
crimen iniuria .............................. 461–467 culpa (and see negligence) .................. 205
definition ......................................... 461 culpability (and see criminal capacity,
dignitas ............................................ 462 intention, intoxication, negligence,
elements of crime ............................ 461 provocation, strict liability) ...... 145–243
intention .......................................... 467 contemporaneity,
interests protected ........................... 462 principle of........................... 148–149
objective dimension ................ 463–464 criminal capacity (and see criminal
origin ............................................... 461 capacity) definitional elements,
overlapping with other relation to ..................................... 155
crimes ................................... 461–462 forms of........................................... 148
privacy, infringement of.......... 465–466 freedom of will, and........................ 147
serious infringement of general ............................................ 145
interests ................................ 466–467 intention (and see intention) ... 176–204
subjective dimension ....................... 463 legal as opposed to moral ....... 147–148
unlawfulness ................................... 467 meaning of ...................................... 145
victim degraded by conduct ............ 463 mens rea .................................. 145, 146
violation of dignity .................. 464–465 moral as opposed to legal ....... 147–148
criminal capacity .......................... 155–175 necessity excluding ................. 235–236
at time of conduct............................ 157 negligence (and see
cognitive function ................... 157–158 negligence) .......................... 204–216
conative function ..................... 157–158 normative character of ............ 150–153
culpability, relation to ..................... 156 psychological theory of .......... 153–156
definition ......................................... 156 statutory offences, in............... 236–241
diagram of contents ......................... 157 strict liability ........................... 236–241
diminished ............................... 170–171 taint doctrine, rejection of ....... 149–150
general concept ....................... 155–156 terminology ............................. 146–147
grounds excluding (and see mental unlawfulness,
illness, immature age) .......... 164–175 relation to ............. 100–101, 145–146
immature age ........................... 173–175 versari in re illicita ................. 149–150
intention and.................................... 156 vicarious liability .................... 242–243
intoxication and (and see culpable homicide........................ 442–443
intoxication) ......................... 216–230 attempt not possible ........................ 443
involuntary behaviour and .............. 158 definition ......................................... 442
meaning of .............................. 155–156 elements of crime............................ 442
mental illness (and see mental murder, relation to .......................... 442
illness) .................................. 174–176 negligence ............................... 442–443
non-pathological ..................... 158–164 custody, escaping from ................ 338–340
608 CRIMINAL LAW

PAGE PAGE
D dolus directus ...................................... 177
dagga – see drug offences dolus eventualis ........................... 178–186
de minimis non curat lex .............. 139–140 conscious negligence ...... 183–184, 215
dealing in drugs............................ 423–426 definition ......................................... 178
dealing in, meaning of............. 423–425 foreseeing result ...................... 179–180
definition ......................................... 423 proof of ................................... 184–186
drug, description of ......................... 425 recklessness .................................... 181
elements of crime ............................ 423 reconciling to result ................ 181–183
intention .......................................... 425 dolus generalis ............................ 196–197
punishment .............................. 425–426 dolus indeterminatus ................... 196–197
unlawfulness ................................... 425 dolus indirectus ................................... 177
death sentence abolished, drug offences – see possession of drugs,
criticism of .................................... 26–29 dealing in drugs
defamation, criminal – see criminal drugs, effect of liability – see intoxication
defamation duress – see necessity
defeating or obstructing course
of justice .................................... 327–331 E
administration of justice .......... 330–331 embezzlement .............................. 490–492
appellation ............................... 327–328 emergency – see necessity
attempt............................................. 331 emotional stress – see non-pathological
definition ......................................... 327 criminal incapacity
difference between obstructing engaging in sexual services for reward –
and defeating ................................ 328 see prostitution
elements of crime ............................ 327 English law, influence of,
intention .......................................... 331 on South African criminal law ......... 7–8
pending case not requires ................ 330 entrapment ................................... 140–143
ways in which committed ....... 328–330 exclusion of evidence relating to .... 140
defences and their effect .............. 557–558 general principle relating to ............ 142
defences, table of ......................... 557–558 justification, no ground of .............. 140
definitional elements ........................ 71–79 meaning of term .............................. 140
act and ............................................... 72 necessary in certain cases ............... 141
arrangement of crimes possible future developments ......... 142
according to.............................. 78–79 provisions of s 252A of
contents of ................................... 72–73 Criminal Procedure Act ....... 141–142
culpability and ............................. 74–76 epileptic fit, effect of ....................... 55–47
intention and................................ 74–76 error – see mistake
meaning of term .......................... 71–72 error in negotio ........................... 126, 354
negligence and ........................ 206–209 error in objecto ............................ 188–189
delict distinguished from crime ........... 3–5 error iuris (mistake of law)
delictum continuum ...................... 500–501 (and see ignorance of law) ........ 199–204
delirium tremens .......................... 166, 218 error personae ............................. 126, 354
deterrent theory of punishment ........ 15–17 escaping from custody ................. 338–340
criticism of ........................................ 17 euthanasia .................................... 124, 441
general deterrence ....................... 16–17 ex post facto legislation ............. 36, 41–42
individual deterrence ................... 15–16 exploitation, sexual, of children.... 388–389
dignitas (and see crimen iniuria) ......... 462 exposing an infant ....................... 444–445
dignity, infringement of – see crimen exposing genital organs, anus or
iniuria breasts ....................................... 372–373
diligens paterfamilias .......................... 210 extortion....................................... 417–419
diminished criminal capacity ....... 170–171 acquisition of advantage ................. 419
disciplinary chastisement – see advantage ................................ 418–419
chastisement, disciplinary causation ......................................... 419
displaying child pornography .............. 373 definition ......................................... 417
dolus – see intention elements of crime............................ 417
 INDEX 609

PAGE PAGE
extortion – continued fundamental rights – see Bill of Rights,
intention .......................................... 419 effect of
origin ....................................... 417–418 furtum possessionis.............................. 492
pressure ........................................... 418 furtum usus .................................. 492–493
unlawfulness ................................... 419
G
F general theory of deterrence ............ 16–17
failure to give account of possession of genital organs, exposing .............. 372–373
goods suspected of being stolen – see going astray of the blow – see aberratio
inability to give account of possession ictus
of goods suspected of being stolen goods suspected of being stolen, inability
false statement in affidavit, making ..... 338 to give account of – see inability to give
fama (and see criminal defamation) .... 467 account of goods suspected of being
fault – see blameworthiness stolen
firearm, pointing a – see pointing a grave, violation of........................ 435–436
firearm grievous bodily harm – see assault
firearm, unlawful grooming, sexual, of children .............. 389
possession of ............................. 426–430 grounds of justification (and see
culpability ............................... 428–429 private defence, necessity, consent,
definition ......................................... 426 presumed consent, official capacity,
elements of crime ............................ 427 obedience to order, disciplinary
firearm, meaning of ................. 427–428 chastisement) ...................... 97, 103–143
possession ....................................... 427
prohibited firearm ................... 429–431 H
punishment ...................................... 429 high treason ................................. 299–308
unlawfulness ................................... 428 acts of ...................................... 302–304
flashing ........................................ 372–373 allegiance ................................ 301–302
forgery.......................................... 532–535 animus hostilis ........................ 304–306
character and origin................. 532–533 attempt ............................................ 306
definition ......................................... 532 conspiracy ....................................... 306
document ......................................... 533 constitutional dimensions ....... 306–308
elements of crime ............................ 532 definition ......................................... 299
falsification ..................................... 534 elements of crime............................ 300
fraud, overlapping with ................... 532 historical ......................................... 300
intent ............................................... 534 incitement ....................................... 306
prejudice .......................................... 534 intention .................................. 304–306
formally defined crimes ................... 79, 80 majestas not required ...................... 301
fraud ............................................. 523–523 omission, committing crime by ...... 303
attempt..................................... 531–532 peacetime, in ................................... 304
causation not required ..................... 530 perpetrator of .......................... 301–302
constitutional aspects ...................... 532 punishment...................................... 306
definition ......................................... 523 violence not required ...................... 304
elements of crime ............................ 523 war, in time of ......................... 303–304
forgery, overlapping with........ 532–533 homicide – see murder, culpable
implied misrepresentation ....... 524–525 homicide
intention .......................................... 531 housebreaking implements,
misrepresentation .................... 524–527 possession of ..................................... 550
omission, misrepresentation by ....... 525 housebreaking with intent to
origin and character......................... 523 commit a crime ......................... 543–550
prejudice, general ............................ 527 breaking .......................................... 547
prejudice, non-proprietary....... 529–530 building or structure................ 544–546
prejudice, potential .................. 527–529 caravan, in respect of .............. 546–547
promise about future ....................... 526 definition ......................................... 543
unlawfulness ................................... 530 elements of crime............................ 543
610 CRIMINAL LAW

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housebreaking with intent to commit a incitement – continued
crime – continued attempt and .................................... 295-
entering ................................... 547–548 chain incitement .............................. 295
housebreaking alone not a concretisation requirement...... 291–293
crime .................................... 543–544 conditional ...................................... 294
intention .................................. 548–549 conduct which is not ....................... 291
origin and character......................... 543 conspiracy and ................................ 296
unlawfulness ................................... 548 impossible ............................... 294–295
with intent to commit crime inciting person lacking capacity ..... 295
unknown to prosecutor ........ 549–550 influencing another ................. 290–291
intention .................................. 293–294
I prohibition of .......................... 289–290
ignorance of the law, effect of ..... 199–204 punishment...................................... 296
criticism of De Blom ............... 201–204 purpose of prohibition .................... 290
judgment in De Blom .............. 199–200 successful ........................................ 290
‘knowledge’, meaning of ................ 200 ways in which committed ............... 291
law before 1977............................... 199 indecency, public – see public indecency
legal advice, effect of .............. 200–201 indecent assault replaced by
present law, position in ........... 199–200 statutory crime .......................... 360–361
suggested law reform ...................... 204 individual deterrence, theory of....... 15–16
ignorantia iuris neminem excusat ........ 199 infant, exposing an ...................... 444–445
immature age ............................... 173–175 injury to property – see malicious
age limits ......................................... 174 injury to property
cognitive leg of test ......................... 175 insane automatism – see automatism
conative leg of test .......................... 175 insanity – see mental illness
criminal capacity, test for ................ 174 intention ....................................... 176–204
summary of rules............................. 173 aberration ictus....................... 193–197
impossibility, defence of .................. 60–62 awareness of unlawfulness ..... 197–204
in facie curiae, contempt ............. 317–319 causation, mistake relating to
inability to give account of goods chain of ................................ 189–192
suspected of being stolen .......... 515–519 chain of causation,
constitutionality of crime ................ 516 mistake relating to ............... 189–192
definition ......................................... 515 circumstance, in respect of ..... 186–187
elements of crime .................... 515–516 cognitive element of ............... 179–180
found in possession ................. 516–517 colourless ........................................ 176
goods ............................................... 516 conative element of ................. 181–183
inability to give account .......... 518–519 conscious negligence and ....... 183–184
possession, meaning of ................... 517 constructive – see dolus eventualis
reason for crime’s existence............ 515 definition ......................................... 176
reasonable suspicion ....................... 517 definitional elements,
incest ............................................ 378–381 relating to ............................. 186–192
adoptive relationship ............... 380–381 description of .................................. 176
affinity ............................................. 379 diagram of contents of .................... 177
consanguinity .................................. 379 direct – see dolus directus
definition ......................................... 378 dolus directus .................................. 177
elements of crime ............................ 378 dolus eventualis (and see
general ............................................. 378 dolus eventualis) .................. 178–184
intention .......................................... 381 dolus generalis ........................ 196–197
people who may not marry ..... 378–379 dolus indeterminatus............... 196–197
sexual penetration ........................... 378 dolus indirectus............................... 177
inchoate crimes – see attempt, elements of .............................. 176–177
conspiracy, incitement error, effect of (and see
incitement .................................... 289–296 mistake) ............................... 187–204
act of........................................ 290–293 error in objecto ....................... 188–189
 INDEX 611

PAGE PAGE
intention – continued intoxication, effect of – continued
error iuris – see mistake of law voluntary ................................. 217, 226
foreseeing result ...................... 179–180 voluntary act excluded by ....... 220–221
forms of ........................................... 177 involuntary conduct – see automatism
going astray of the blow – ius acceptum .............................. 36, 39–41
see aberratio ictus ius certum .................................. 36, 42–43
ignorance of law, and .............. 199–204 ius praevium .................................... 41–42
indirect – see dolus indirectus ius strictum ................................ 36, 43–45
inferential reasoning, by.......... 184–186
intoxication and ....... 220–222, 226–227 J
knowledge of unlawfulness..... 197–204 joiner-in ....................................... 264–265
legal – see dolus eventualis justification – see grounds of justification
material and immaterial mistakes ... 188
mistake, effect of ..................... 187–204
mistake of law, effect of.......... 199–204 K
mistake relating to motive ............... 189 kidnapping ................................... 471–474
mistake relating to chain of appellation .............................. 471–472
causation .............................. 189–192 child, meaning of ............................ 473
motive, and .............................. 186, 189 definition ......................................... 471
negligence, and ............................... 205 deprivation of freedom ................... 473
proof of.................................... 184–186 duration of deprivation ........... 473–474
recklessness, and ............................. 181 elements of crime............................ 471
reconciling oneself to intention .......................................... 474
foreseen result ...................... 181–183 interests protected ................... 472–473
subjective test .................................. 184 minor, meaning of........................... 473
test to determine ...................... 184–186 own child cannot be kidnapped ...... 473
transferred ............................... 193–197 relation to other crimes ................... 472
wild shootout situations .................. 197 killing in course of arrest – see arrest, use
intimidation .................................. 455–458 of force or homicide during
crime created in s 1(1)............. 455–457 knowledge of unlawfulness ......... 201–202
crime created in s 1A(1) .......... 457–458
intoxication, effect of ................... 216–230 L
actio libera in causa................ 217–218 legal duty to act ............................... 58–59
approaches, two different, to ........... 219 legal persona – see corporate bodies,
burden of proof in statutory liability of
crime .................................... 227–229 legality, principle of ........................ 36–49
Chretien’s case ........................ 219–222 analogous interpretation to be
criminal capacity avoided .................................... 45–48
excluded by .......................... 220–221 clear formulation of crimes
delirium tremens ............................. 218 required .................................... 36, 42
desirability of statutory common-law crimes,
crime .................................... 224–225 interpretation of ....................... 39–41
drugs, resulting from use of ............ 217 Constitution, recognition of in .... 37–39
general ..................................... 216–217 courts may not create crimes ............ 39
intention excluded by .............. 220–221 definition ........................................... 36
involuntary ...................................... 237 fair trial, right to, and ........................ 38
mental illness, and ........................... 218 ius acceptum ......................... 36, 39–41
mistake due to ................................. 223 ius certum ............................. 36, 42–43
negligence, in crimes of .......... 222–223 ius praevium ............................... 41–42
punishment, effect of on ................. 223 ius strictum ........................... 36, 43–45
specific intent theory ....................... 220 Masiya judgment, criticism of .... 45–48
statutory crime ........................ 224–229 nulla poena sine lege ............ 36–37, 49
summary of present rules ........ 229–230 punishment, role is ...................... 36, 49
test to determine .............................. 223 rationale of ........................................ 36
612 CRIMINAL LAW

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legality, principle of – continued mental illness – continued
retrospective operation of crime, verdict ............................................. 170
prohibition on..................... 36, 41–42 wrongfulness of conduct,
right to fair trial, and ......................... 38 capacity to appreciate .................. 167
rules embodied in principle ............... 36 mentally disabled person,
strict interpretation of criminal sexual crimes against ................ 390–392
provisions ........................... 36, 43–45 mercy killing – see euthanasia
vague formulations of crimes mistake
unacceptable....................... 36, 42–43 aberratio ictus......................... 193–197
lex non cogit ad impossibilia – see chain or causation,
impossibility relating to ............................. 189–192
lex talionis .............................................. 12 definitional elements, relating to .... 188
liability, criminal, error in negotio ....................... 126, 348
construction of .............. 29–35, 555–556 error in objecto ....................... 199–204
lucidum intervallum ............................. 166 error iuris ............................... 199–204
error personae ........................ 126, 348
M general ............................................ 187
making conflicting statements intoxication, effect of .............. 219–221
under different oaths ................. 336–338 law, of ..................................... 199–204
making false statement under oath ...... 338 material and immaterial forms of ... 188
malicious injury to property......... 539–541 motive, relating to ........................... 189
appellation ............................... 539–540 negligence, relation in respect of .... 215
damage .................................... 540–541 reasonableness not required ............ 188
definition ......................................... 539 unlawfulness, relating to ......... 197–204
elements of crime ............................ 539 murder ......................................... 437–441
intention .......................................... 541 causing death .................................. 438
malice not required ......................... 540 definition ......................................... 437
overlapping ............................. 539–540 elements of ...................................... 437
property ........................................... 540 general .................................... 437–438
unlawfulness ................................... 541 human being as victim ............ 438–439
materially defined crimes ................ 79, 80 intention .......................................... 439
medical treatment, effect of on punishment.............................. 440–441
causation ....................................... 90–93 unlawfulness ................................... 439
mens rea – see culpability
mental illness ............................... 164–173 N
act in accordance with Native Territories’ Penal Code ................ 8
appreciation of wrongfulness ....... 167 necessity ...................................... 114–122
analysis of s 78(1) ........................... 165 absolute and relative compulsion.... 116
automatism, accused must be aware of
relation to ................. 55–57, 167–168 emergency.................................... 119
delirium tremens ............................. 166 accused responsible for
diagram setting out requirements emergency............................ 118–119
of defence..................................... 165 compulsion and
diminished responsibility ........ 170–171 inevitable evil ...................... 115–116
lucidum intervallum ........................ 166 culpability,
mental illness or defect ........... 165–167 excluding ............. 116–117, 235–236
non-pathological incapacity, definition ......................................... 114
relation to ............................. 158–159 ground of justification, as ....... 116–118
proof, burden of ...................... 169–170 imminence of emergency................ 118
psychological components of test ... 167 killing another in ..................... 120–122
psychopaths ............................. 171–172 legal interest threatened .................. 118
release of accused ........................... 170 necessary to avert danger ................ 119
test to determine .............................. 164 people legally compelled to
trial, incapacity to stand .................. 172 endure danger .............................. 119
 INDEX 613

PAGE PAGE
necessity – continued obedience to orders as
private defence, and ................ 114–115 justification ............................... 134–136
proportionality between harm and obstructing course of justice – see
interests threatened .............. 119–120 defeating or obstructing course of
punishment, mitigation of ............... 122 justice
putative ............................................ 120 offence and crime .................................... 5
necessity excluding culpability .... 235–236 omissio per commissionem .................... 60
negligence .................................... 204–216 omissions ......................................... 58–62
abbreviated way of referring to ....... 206 causation by ...................................... 89
attempt not possible ........................ 216 generally ..................................... 58–59
bonus paterfamilias ......................... 210 high treason, commission of by ...... 303
children ........................................... 213 impossibility, defence of............. 60–62
circumstances, in respect of ............ 209 legal duty to act........................... 58–59
conscious and unconscious ..... 183, 215 omissio per commissionem ............... 60
crimes requiring .............................. 205 prohibitive and imperative norms ..... 58
culpability, as a form of .......... 206–207 when punishable ......................... 59–60
culpable homicide, in .............. 436–437 orders, obedience to, as
definitional elements, justification ............................... 134–136
as part of .............................. 206–207
diligens paterfamilias...................... 210 P
dual meaning of....................... 206–209
parents’ right to corporal
experts ............................................. 213
punishment ....................................... 138
foreseeability of death ..................... 212
participation in crime................... 249–274
foreseeability, reasonable ........ 211–212
accessory after fact (and see
general description .................. 204–205 accessory after fact) ..... 251, 271–274
ignorance or incompetence ............. 215 accomplice (and see
intention, and................... 205, 214–215 accomplice).......... 250–251, 265–270
intoxication, effect of on ......... 222–223 aider and abettor ............................. 252
objective test ................... 184–186, 206 common purpose, doctrine of
reasonable person .................... 209–211 (and see common purpose,
foreseen result ...................... 212–213 doctrine of) .......................... 255–264
strict liability crimes, in .......... 240–241 diagram of categories...................... 250
subjective factors .................... 213–214 general overview..................... 249–251
superior knowledge ................. 213–214 joiner-in .................................. 264–265
telescoped test ......................... 208–209 perpetrator (and see
test to determine ...................... 205–206 perpetrator) .......... 249–250, 252–265
unlawfulness, in respect of ...... 215–216 socius criminis ........................ 251–252
negotiorum gestio – see presumed consent terminology ............................. 251–252
non-pathological criminal perduellio............................................. 301
incapacity .................................. 158–160 perjury ......................................... 332–335
before Eadie judgment ............ 159–160 court need not have jurisdiction...... 334
criticism of Eadie .................... 161–163 definition ......................................... 332
defence implicitly abolished ... 163–164 elements of crime............................ 332
description of .......................... 158–160 false statement ........................ 332–333
Eadie, judgment in .................. 160–161 intention .......................................... 335
general ..................................... 158–159 judicial proceeding, in the
normative theory of culpability ... 150–153 course of .............................. 333–334
novus actus interveniens ...... 86–87, 89–94 material statement not required ...... 333
nulla poena sine lege ................. 36–37, 49 oath, affirmation or admonition ...... 334
origin ............................................... 332
O statutory perjury ...................... 336–338
oaths, making conflicting statements subornation of ................................. 335
under different........................... 336–338 unlawfulness ................................... 334
614 CRIMINAL LAW

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perpetrators .......................... 250, 252–265 possession – continued
accomplices distinguished possessio naturalis .......... 63–64, 66–67
from...................................... 250–251 receiving stolen property ........ 512–514
co-perpetrators ................................ 253 subjective components of ........... 74–75
common purpose, doctrine of unlawfulness and ........................ 73–74
(and see common purpose, unwilling receiver of articles ...... 69–70
doctrine of)........................... 255–264 wrongdoing and ................................ 74
direct ....................................... 253–254 possession of drugs ...................... 420–423
indirect .................................... 253–254 definition ......................................... 420
joining-in ................................. 264–265 drug, description of ......................... 422
murder, in ................................ 254–255 elements of crime............................ 421
summary of rules relating to .... 252–253 intention .......................................... 423
plagium (and see kidnapping) .............. 471 possession, meaning of ........... 421–422
pointing a firearm ........................ 458–460 punishment...................................... 423
any other person ...................... 459–560 unlawfulness ................................... 422
definition ......................................... 458 use of............................................... 421
elements of crime ............................ 459 possession of housebreaking
firearm ............................................. 459 implements ....................................... 550
intention .......................................... 460 presumed consent ........................ 127–128
punishment ...................................... 460 preventive theory of punishment ........... 15
unlawfulness ................................... 460 principle of legality – see legality,
poison, administering ........................... 443 principle of
pornography, child, displaying ............ 373 privacy, infringement of (and see
pornography, using child for........ 389–390 crimen iniuria) .......................... 465–466
possessio civilis .................... 63–64, 66–67 private defence ............................ 102–114
possession ........................................ 62–70 attack must be imminent ................. 105
ammunition, of ........................ 430–431 attack must be unlawful .......... 103–104
animus ......................................... 65–70 attack need not be directed at
animus detentionis ............................ 65 defender ....................................... 104
animus domini ............................. 66, 69 defence must be directed at
animus ex re commodum attacker ........................................ 106
acquirendi ...................................... 66 defence must be necessary ...... 106–108
animus possidendi ............................. 67 defender must be aware that he
animus rem sibi habendi ............. 66–67 acts in private defence ......... 111–112
animus tenendi ............................ 65–67 defence of property, in ............ 108–111
control, exercising see corpus definition ......................................... 102
corpus .......................................... 63–65 exceeding limits of.................. 113–114
culpability, relation to ................. 68–69 general .................................... 102–103
drugs, of .................................. 420–423 interest against which
elements of ........................................ 63 attack must be directed ................ 105
firearm, of ............................... 429–430 no duty to flee ......................... 106–108
general ......................................... 62–63 putative ................... 112–113, 197–198
goods suspected of relationship between
being stolen, of..................... 514–519 attack and defence ............... 108–111
housebreaking test to determine...................... 112–113
implements, of ..................... 550–551 theories underlying ......................... 102
immediate presence not required ...... 64 prostitution................................... 373–377
joint ................................................... 68 constitutional dimensions ....... 374–375
legal possession – see possessio civilis criticism of crime ............................ 377
mens rea, relation to .................... 68–69 definition ......................................... 373
natural possession see possessio elements of crime............................ 373
naturalis engaging, meaning of ..................... 376
physical possession – see corpus gender-neutral definition ........ 375–376
possessio civilis ............... 63–64, 66–67 general remarks on.......................... 374
 INDEX 615

PAGE PAGE
prostitution – continued punishment – continued
intention .......................................... 377 robbery, for ............................. 511–512
person older than 18 years .............. 376 theories of ................................... 10–20
purpose of engaging ................ 376–377 purpose of punishment – see theories
reward ............................................. 377 of punishment
services, meaning of........................ 376 putative crime (and see
sexual act ................................. 376–377 attempt) ..................................... 282–283
provocation .................................. 230–235 putative private defence....... 113, 201–202
assault, effect of on charges of ........ 235
complete defence, provocation R
ought not to be ............................. 232 rape .............................................. 343–358
conduct, by .............................. 234–235 absence of consent .................. 351–355
culpable homicide, effect on abuse of authority ................... 353–354
charge of ...................................... 235 acts falling under
diminished responsibility ................ 234 ‘sexual penetration’ ............. 347–351
examples of situations ............. 230–231 acts of female in respect of
general ............................................. 230 another female ............................. 351
partial defence ................................. 233 acts of female in respect of
present law .............................. 233–234 male ..................................... 349–350
problems arising from the acts of male in respect of
definition of murder ............. 231–232 another male ................................ 350
treatment of ..................................... 232 acts of male in respect of
psychogenic amnesia ............................. 56 female .................................. 347–348
psychogenic automatism ........................ 56 appreciation of nature of act ........... 355
psychological theory of authority, abuse of .................. 353–354
culpability ................................. 153–156 common-law crime ......................... 343
psychopaths.................................. 171–172 compelled................................ 358–360
public indecency .......................... 433–435 complainant mentally defective ...... 355
conduct in public ..................... 434–435 complainant younger than 12 ......... 355
constitutional dimensions........ 433–434 consent, absence of ................. 351–355
definition ......................................... 433 definition (statutory) ....................... 343
elements of crime ............................ 433 elements of crime............................ 343
indecent conduct ............................. 434 error in negotio ............................... 354
origin ............................................... 433 error in persona .............................. 354
public violence ............................. 311–314 force, consent as result of ....... 352–353
acting together with others .............. 312 fraud, consent induced by ............... 354
conduct constituting crime .............. 313 general remarks on.................. 344–346
definition ......................................... 311 genital organs, definition ................ 346
elements of crime ............................ 311 HIV/AIDS, misrepresentation
intention .......................................... 314 concerning ................................... 354
interests protected ................... 311–312 inability to appreciate nature
number of participants .................... 312 of act ............................................ 355
overlapping with other crimes ........ 312 intention .......................................... 356
serious dimensions .......................... 313 intimidation, consent
publication of matter which is as result of............................ 352–353
sub iudice .................................. 320–322 marital relationship no bar to
punishment conviction .................................... 355
basic considerations .......................... 19 misrepresentation,
crime statistics ............................. 21–24 consent induced by ...................... 354
death sentence, feasibility of penetration, sexual .................. 346–351
reintroducing ............................ 26–29 punishment.............................. 356–358
evaluation of rules relating to ........... 20 sentence .................................. 356–358
murder, for .............................. 440–441 sexual penetration ................... 346–351
rape, for ................................... 356–358 statutory definition ....................... 346
616 CRIMINAL LAW

PAGE PAGE
rape – continued robbery......................................... 508–512
submission to penetration ....... 352–353 bag-snatching .......................... 510–511
threats, consent as result of ..... 352–353 causal link ............................... 509–510
unlawfulness ................................... 356 definition ......................................... 508
‘voluntary and uncoerced’, elements of crime............................ 508
definition ...................................... 352 immediate vicinity of property ....... 510
reasonable person – see negligence origin ............................................... 508
receiving stolen property ............. 512–514 punishment.............................. 511–512
definition ......................................... 512 theft, and ......................................... 508
elements of crime ............................ 512 threats of violence ................... 508–509
intention .......................................... 514 violence ........................................... 508
origin ....................................... 512–513
overlapping with theft ............. 512–513 S
receiving .......................................... 514 sane automatism .............................. 55–56
stolen property ................................ 513 scandalising the court (and see
unlawfulness ........................... 513–514 contempt of court) .................... 322–324
receiving stolen property without sedition ........................................ 308–311
reasonable cause ....................... 519–521 causing a concourse ................ 310–311
recklessness.......................................... 181 challenging state authority .............. 310
reformative theory of punishment ... 17–18 definition ......................................... 308
rehabilitation theory of elements of crime............................ 308
punishment .................................... 17–18 historical ......................................... 308
removal of property for use ......... 502–507 intention .......................................... 311
consent, absence of ......................... 506 interests protected ........................... 309
control of another .................... 504–506 number of persons taking part ........ 309
criticism of formulation .......... 503–504 relationship to other crimes
definition ................................. 502–503 against the state.................... 308–309
elements of crime ............................ 503 violence or threats of ...................... 309
extra-contractual borrowing .... 503–504 self-defence – see private defence
extra-contractual use ............... 503–504 self-sexual assault, compelled ..... 369–371
intention .................................. 506–507 sentence – see punishment
property ........................................... 504 sexual act with corpse.......................... 383
reason for existence of crime .......... 502 sexual assault ............................... 360–368
removal ........................................... 504 acts punishable ........................ 361–366
somebody else’s control .......... 504–505 compelled................................ 368–369
reputation, protection of – see criminal consent, absence of ................. 367–368
defamation definition ......................................... 360
requirements for liability, direct contact................................... 362
sequence of ................................... 34–35 elements of crime............................ 360
retributive theory of punishment ..... 11–15 indecent assault,
condemnation of crime ..................... 13 common-law crime .............. 360–361
culpability requirement and ........ 13–14 indecent assault replaced by ... 360–361
description of .............................. 11–12 indirect contact ............................... 362
freedom of will and ..................... 13–14 inspiring belief of violation .... 366–367
human dignity and....................... 14–15 intention .......................................... 368
proportionality in punishment ........... 13 purpose of crime ............................. 360
punishment, degree of, and ............... 13 sexual violation ....................... 361–366
rebirth of............................................ 12 sexual crimes against children ..... 383–390
vengeance different from act of sexual penetration ................. 385
retribution................................. 12–13 both parties are children ......... 384–385
retrospective operation of crime, child between 12 and 16 ................. 384
prohibition on .......................... 36, 41–42 child, meaning of ............................ 384
rights, fundamental – see Bill of Rights, compelling children to witness
effect of sexual crimes ............................... 390
 INDEX 617

PAGE PAGE
sexual crimes against children – intention or negligence,
continued whether required .................. 240–241
consensual penetration of ........ 383–387 negligence as middle course ........... 240
defences, special ..................... 385–386
failure to report sexual offences principles for determining ...... 238–240
against children ............................ 390 subornation of perjury ......................... 335
general ..................................... 383, 384 suicide
grooming, sexual, of children ......... 389 inciting someone to ........................... 90
intention .................................. 386–387
old legislation .................................. 384 not a crime .............................. 438–439
pornography summary of criminal liability .......... 29–35
displaying to children ................... 389 suspectedly stolen goods, inability to
using children for ................. 389–390 give account of – see inability to give
sexual exploitation of account of goods suspected of being
children ................................ 388–389 stolen
sexual grooming of children ........... 389
sexual penetration ........................... 385 T
sexual violation of children ..... 387–388
sexual crimes against mentally table of defences and
disabled persons ........................ 390–392 their effect ................................. 557–558
sexual exploitation of children..... 388–389 taint doctrine, rejection of............ 149–150
sexual services for reward, engaging in – teachers, no right to inflict
see prostitution
sexual violation of children ......... 387–388 corporal punishment ......................... 137
socius criminis ............................. 251–252 theft .............................................. 475–502
sodomy no longer punishable .............. 350 accessories after fact not
sources of criminal law ...................... 5–10 possible ................................ 500–501
Bill of Rights ................................. 9–10 accomplices not possible ........ 501–502
case law ............................................... 6
common law .................................... 6–7 act, requirement of .................. 478–481
Constitution ................................... 9–10 animus furandi ........................ 477, 484
English law...................................... 7–8 appropriation, act of ................ 478–481
German criminal-law theory ........... 8–9 arrogation of possession ................. 492
legislation ........................................ 5–6 attempted and completed theft,
Native Territories’ Penal Code ........... 8
border between ............................ 489
Strafrechtswissenschaft ................... 8–9
specific-intent theory – see intoxication benefit, intention to acquire
spontaneous agency – see presumed not required .......................... 487–488
consent cheques, theft by means of ..... 494–500
statistics of crime in South Africa ... 21–26 consent ............................................ 484
statutory intoxication, crime of continuing crime ..................... 500–501
(and see intoxication) ................ 224–229
statutory perjury ........................... 336–338 contrectatio ..................................... 477
statutory rape see sexual offences corporeal, property must be ............ 481
against children credit, theft of ......................... 493–500
stolen property, receiving – see receiving debtor-creditor relation,
stolen property
stolen property, receiving without defence of ............................ 497–498
reasonable cause ....................... 519–521 definition ......................................... 475
strict interpretation of criminal delictum continuum................. 500–501
provisions ................................ 36, 43–45 dishonest accounting of trust
strict liability ................................ 236–241 funds .................................... 498–499
constitutionality of .......................... 238
criticism of ...................................... 241 electricity, whether possible
strict liability – continued to steal .................................. 482–483
decrease in cases of strict elements of crime............................ 476
liability ......................................... 237 embezzlement ......................... 490–492
description of .......................... 236–237 entrusted property, theft of ..... 495–497
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theft – continued theories of punishment – continued
failure to account for trust funds ..... 498 classification of ................................. 10
false pretences, by ................... 535–537 combination theory of ................. 19–20
forms of theft........................... 477–478 deterrent theories (and see
fraudulosa ....................................... 477 deterrent theories of
furtum possessionis ......................... 492 punishment) ............................. 15–17
furtum usus .............................. 492–493 evaluation of ..................................... 20
goods suspected of being stolen, general deterrence ....................... 16–17
possession of ........................ 515–519 individual deterrence .................. 15–16
in commercio, preventive theory .............................. 15
property must be .................. 483–484 reformative theory ...................... 17–20
injury to property, relative and absolute ......................... 11
overlapping with .................. 486–487 retributive theory (and see
instrumentality of another, retributive theory of
through ......................................... 481 punishment) ............................. 11–15
intent to benefit not thoughts not punishable ......................... 53
required ................................ 487–488 transferred malice – see aberratio ictus
intention .................................. 484–488 trapping – see entrapment
intention permanently to deprive .... 486 treason – see high treason
intention to appropriate ........... 485–486 trespass ........................................ 551–554
Latin expressions used .................... 477 being upon .............................. 551–552
liquid fund, defence of .................... 497 definition ......................................... 551
lucri faciendi gratia ................ 487–488 elements of crime............................ 551
money, theft of ................ 494, 499–500 entering ................................... 551–552
movable, property must be .............. 481 intention .......................................... 554
omissions, by........................... 491–492 land or building ............................... 552
overpayments, appropriation of ...... 499 lawful reason for being on
possession, unlawful ground .................................. 553–554
arrogation of................................. 492 punishment...................................... 554
property capable of unlawfulness ........................... 552–554
being stolen .......................... 481–484 trifling nature of act ..................... 139–140
receiving stolen
property ................ 512–514, 519–521
U
removal of thing ...................... 488–490
res communes cannot be stolen ....... 483 unauthorised administration – see
res derelictae cannot be presumed consent
stolen .................................... 483–484 unlawfulness (and see grounds of
res fungibiles ................................... 499 justification) ................................ 95–148
res nullius cannot be stolen ............. 484 awareness of ........................... 201–202
res (property) .......................... 481–484 boni mores ........................................ 98
self-service shop, theft from ... 489–490 culpability, and ....................... 100–101
stolen property, definitional elements and ............ 85–96
receiving............... 512–514, 519–521 grounds of justification (and see
temporary use of a thing ......... 492–493 grounds of justification) ................ 97
things capable of knowledge of .......................... 201–202
being stolen .......................... 481–484 legal convictions of
trust funds, appropriation of .... 493–500 community ............................... 97–99
unlawfulness ................................... 484 material contents of .................... 97–99
unusual aspects of crime ......... 476–477 subjective considerations .......... 99–100
use of thing not theft ....................... 486 wrongdoing and ................................ 97
theft by false pretences ................ 535–537 use, removal of property for – see
theories of punishment ..................... 10–20 removal of property for use
absolute and relative ......................... 11 uttering................................................. 535
 INDEX 619

PAGE PAGE
V W
vague formulations of crimes watching sexual acts, compelling
unacceptable............................ 36, 42–43 someone to ................................ 371–372
versari in re illicita, wrongdoing ............................................ 74
rejection of ................................ 149–150
vicarious liability ......................... 242–243 Y
violation of corpse ............................... 436 young age – see immature age
violation of grave ......................... 435–436
vis absoluta .............................. 54–55, 117
vis compulsiva .................................. 54–55