Learning Unit 7 transcript

This lesson is located in the link below:

https://youtu.be/_NCxnbX3Ejk

Hallo again students! Welcome to the lecture! We will be discussing Learning Unit 7 today, which
deals with culpability and criminal capacity.

A quick recap of the work done last week. In the first few weeks, we completed the first two Learning
Units, then we moved on to criminal liability where we still currently are. Under criminal liability, we
completed the first three of the requirements for criminal liability, namely the act (or conduct) (in
Learning Unit 3), and definitional elements (which included causation) (in Learning Unit 4), and
unlawfulness in Learning Unit 5 where we focused on the ground of justification of private defence as
well as the last Learning unit 6 where the rest of the grounds of justification were considered.
In Learning Unit 6, the remainder of the well-known grounds of justification namely necessity,
consent, presumed consent, obedience to orders and official capacity were dealt with in detail.
Triviality and the right of chastisement (which was declared unconstitutional) were also briefly
discussed as additional topics of interest.

Looking at the flowchart provided, we have already set out three of the four elements of criminal
liability, namely the act (conduct), compliance with the definitional elements, and unlawfulness. In
this Learning unit, we will begin to explain the fourth and last general element of liability, namely
culpability. The requirement of culpability contains many facets, and the discussion of this
requirement (or "element") extends to the end of Learning unit 13. In this Learning unit, we will first
give a general explanation of the requirement of culpability. Thereafter, we will discuss the
requirement of criminal capacity, which will be followed by a discussion of the general defence of
criminal incapacity (better known as the defence of ''non-pathological criminal incapacity") and
abbreviated as NPCI.
The mere fact that a person has committed an act that complies with the definitional elements and
that is unlawful is still not sufficient to render him or her criminally liable. One very important general
requirement remains to be satisfied: X's conduct must be accompanied by culpability. This means,
broadly speaking, that there must be grounds upon which, in the eyes of the law, X can be blamed for
her conduct. This will be the case if she has committed the unlawful act in a blameworthy state of
mind. Culpability also looks at the perpetrator as an individual, and the question we ask is whether
this particular person – considering her personal characteristics, aptitudes, gifts, shortcomings and
mental abilities, as well as her knowledge – can be blamed for her commission of the unlawful act.

Culpability or its Latin term mens rea has two forms or legs: (1) criminal capacity which refers to the
person's mental ability, AND (2) intention OR negligence – X must have acted either with intent in
committing the crime or negligently. These two forms of culpability are always included in the
definition of the crime, e.g., murder is the unlawful, intentional causing of the death of another
person, while culpable homicide is the unlawful, negligent causing of the death of another person. We
will discuss these two legs of culpability more in detail in the following slides. The culpability and the
unlawful act must be contemporaneous. This means that in order for a crime to have been committed
by X, there must have been culpability on the part of X at the very moment when the unlawful act was
committed. No crime is committed if culpability existed only before the commission of the unlawful
act, but not at the moment the act was committed, or if it came into being only after the commission
of the unlawful act. This is called the principle of contemporaneity. In the case of Masilela 1968 (2) SA
558 (A), X assaulted and strangled Y, intending to kill him; then, believing 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 died in the fire. X maintained that he
was not guilty of murder as his act of strangling Y which was committed with the intention to murder,
did not actually kill Y, and his second act of setting the house of fire which did kill Y, was not
accompanied by the intention to murder as he believed that Y was already dead. X was merely
disposing of Y’s body which cannot be equated with an intention to kill a human being. The court held
that X was indeed guilty of murder as his conduct did not consist of two separate acts, but of a single
course of conduct. In this regard, the principle of contemporaneity is closely related to the rule that a
mistaken belief concerning the causal chain of events usually does not exclude intention. The latter
rule will be discussed in a later Learning Unit.

What is criminal capacity? As said before, the term "criminal capacity" refers to the mental abilities or
capacities that a person must have in order to act with culpability and to incur criminal liability. A
person is endowed with criminal capacity if he has the mental ability to (1) appreciate the
wrongfulness of his act or omission (for example, X must know that speeding is against the law and
therefore wrong) AND (2) act in accordance with such an appreciation of the wrongfulness of his act
or omission (for example, while knowing that speeding is wrong, X drives his car in excess of the speed
limit and crashes into a streetlamp). These two psychological legs of the test for criminal capacity are
also known as (1) the cognitive function, that is, the ability to distinguish between right and wrong,
lawful or unlawful, that is, his insight, and (2) the conative function, that is, a person’s ability to
conduct himself in accordance with his insight into right and wrong. This function relates to a person's
ability to control his behaviour in accordance with his insights – that is, exercise self-control. If one (or
both) of these abilities is lacking, the person concerned lacks criminal capacity, and cannot be held
criminally responsible for an unlawful act that he has committed while he lacked such ability.
What are the defences which exclude criminal capacity? Specific defences excluding criminal capacity
are mental illness and youthful age, and the general defence excluding criminal capacity is non-
pathological criminal incapacity (NPCI). The two specific defences of criminal incapacity, namely
mental illness and youth will be discussed in more detail in the following Learning unit. In this session,
we will elaborate more on the general defence of NPCI. The defence of NPCI may succeed without any
need to prove that, at the time of the commission of the act, X was suffering from a mental illness. For
this defence to succeed, it is sufficient to prove that X lacked criminal capacity for only a relatively
brief period, and that the criminal incapacity was not a manifestation of some illness of the mind or a
pathological mental disturbance. It would therefore be sufficient to prove that, for a relatively brief
period during the commission of the act, X, owing to, for example, an emotional collapse, was unable
to act in accordance with his insights into right or wrong. Such an "emotional collapse“ may be caused
by shock, fear, anger, stress, concussion, provocation or intoxication, or be the result of a combination
of these factors. If X relies on this defence, the onus of proving beyond reasonable doubt that X had
criminal capacity at the time of the commission of the act rests upon the state. However, X must lay a
foundation for the defence in the evidence. There should preferably be expert evidence by
psychiatrists or clinical psychologists concerning X's mental abilities shortly before and during the
commission of the act.
The law on the defence of NPCI before 2002 (when the judgment in Eadie was delivered) stated that
if, on the evidence as a whole, the court is satisfied that at the time of the commission of the crime, X
lacked the ability to appreciate the wrongfulness of his act or to act according to such an appreciation,
he must be found not guilty, no matter what the cause of the inability. However, in Eadie 2002 (1)
SACR 663 (SCA), the Supreme Court of Appeal delivered a judgment that raises doubts about whether
the defence of NPCI still exists. The facts in this case are the following: X, a hockey player, consumed
a large quantity of liquor at a social function. He left the party quite late at night and started driving
home. Y, the driver of another vehicle, overtook X's car and then drove very slowly in front of him so
that X could not overtake him. X eventually succeeded in overtaking Y. Y then drove at a high speed
behind X, with the lights of his car on bright. The two cars then stopped. X was very angry, got out of
his car, grabbed a hockey stick, which happened to be in the car, and walked to Y's car. X smashed the
hockey stick to pieces against Y's car, assaulted Y repeatedly, pulled him out of his car, and then
continued to assault him outside the car on the road. Y died as a result of the assault. This was a case
of "road rage". On a charge of murder, X relied on the defence of NPCI. The court rejected his defence
and convicted him of murder. The court held that there is no distinction between NPCI owing to
emotional stress and provocation, on the one hand, and the defence of sane automatism, on the
other. If you have forgotten what sane automatism is, please go back to Learning unit 3 and read this
section again. It is submitted that until such time as there is more clarity in our case law on the
question whether the defence of NPCI still exists, the judgment in Eadie should be limited to cases in
which X alleges that his incapacity was caused by provocation or emotional stress. If he alleges that
he momentarily lacked capacity owing to other factors, such as intoxication, the defence of NPCI still
exists. It is also submitted that if, as in the Eadie case, X alleges that he lacked capacity as a result of
provocation or emotional stress, he can escape liability only if he successfully raises the defence of
sane automatism. This has been a very interesting but challenging Learning unit! If you have any
questions on criminal capacity and especially the Eadie case, do not hesitate to contact your lecturers.
We will try our best to clarify your query for you.
And on that note, remember that these notes are merely supplementary to your prescribed material
of which your study guide remains the primary source from which to study!

Thank you for attending, and we are looking forward to seeing you at the next lecture! Goodbye and
have a good week!