South African Criminal Law

James Grant

Chapter 01: Overview of the Requirements of Criminal Liability

Contents
Introduction ............................................................................................................................................ 2

Voluntariness .......................................................................................................................................... 2

Unlawfulness........................................................................................................................................... 3

Causation ................................................................................................................................................ 4

Capacity................................................................................................................................................... 5

Fault ........................................................................................................................................................ 5

Contemporeneity .................................................................................................................................... 6

Onus of Proof .......................................................................................................................................... 7

Conclusion............................................................................................................................................... 8
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Introduction
One is only criminally liable and subject to punishment if the following requirements are met.1
It must be proved, beyond any reasonable doubt, that the accused committed some wrongful
conduct which coincided in time2 with a culpable/guilty mental state. For illustration purposes,
it will be helpful to bear the definition of the crimes of murder and culpable homicide in mind.
Murder is defined as the intentional unlawful killing of another human being. Culpable
homicide is defined as the negligent unlawful killing of another human being. Notably, the two
crimes are identical, except that murder requires intention, while culpable homicide requires
negligence.3
Wrongful/Unlawful4 conduct (also known as the actus reus) requires conduct, in the
form of an act or omission, which is voluntary and is wrongful/unlawful. A culpable mental
state (also known as mens rea) requires, on the current law, at least ‘capacity’ and – at least for
all serious crimes – some form of fault (intention or negligence).

Voluntariness
Conduct must be voluntary – without exception. Conduct is regarded as voluntary when it is
controlled by an accused’s will.5 Involuntary conduct is also known as an automatism – from

1
Other ways of grouping requirements exist (CR Snyman Criminal Law 5th ed (2008) 33ff). However, this
method is consistent with practice and captures all that is necessary. Snyman argues that a separate requirement
of ‘compliance with the definitional elements’ is required since each crime prohibits particular conduct, not just
any conduct (ibid 30 & 4). He is obviously correct. However, the enquiry into conduct must necessarily concern
itself with conduct that is prohibited, and not just any conduct. When one enquires into whether conduct may be
attributed to the accused, the question is – necessarily – whether the accused did what is prohibited under some
crime. As Visser and Maré note ‘conduct in the criminal law refers not only to action or inaction, but to such
action or inaction in all the relevant circumstances of the particular proscription in question’ (PJ Visser & MC
Maré Visser & Vorster's General Principles of Criminal Law Through the Cases 3rd ed (1990) 46).
Snyman also prefers to combine the requirements of capacity and fault under the heading of culpability – though
they remain separate requirements. De Wet and Swanepoel (J. C. De Wet Strafreg 4 ed (1985) 110; endorsed in
S v Laubscher 1988 (1) SA 163 (A); S v Calitz 1990 (1) SACR 119 (A); S v Wiid 1990 (1) SACR 561 (A)) are of
the view that capacity forms a separate independent requirement within mens rea. These views are apparently
reconcilable within the framework proposed above.
2
Known as the requirement of contemporeneity (see under the heading ‘Contemporeneity’ on page 7).
3
The difference is explained below under the heading ‘Fault’ (on page 5).
4
In criminal law the term ‘unlawful’ is used instead of ‘wrongful’. However the term wrongful will sometimes
be used here to assist in conveying the meaning of ‘unlawful’ conduct.
5
S v Chretien 1981 (1) SA 1097 (A); J Austin Lectures on Jurisprudence 3rd ed (1869) 426, reported in W.
Wilson Criminal Law: Doctrine and Theory (1998) 220; Andrew Ashworth Principles of Criminal Law 2nd ed
(1997) 96-7; Jonathan Burchell Principles of Criminal Law 3rd Revised ed (2006) 180; Ronald Louw 'S v
Eadie: Road Rage, Incapacity and Legal Confusion' (2001) 14 SACJ 207; Deborah W. Denno 'Crime and
Consciousness: Science and Involuntary Acts' (2002) 87 Minnesota Law Review. See also Leon 'Responsible
Believers' (2002) 85 The Monist; Charles Taylor 'Responsibility for Self' In Free Will edited by Gary Watson
111-26 (1982); Gary Watson 'Free Agency' (1975) 72 Journal of Philosophy; Wolf 'Sanity and the Metaphysics
of Responsibility' In Free Will edited by Kane (2002)).
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the notion of an automaton. So fundamental is this requirement that if it is absent the enquiry
into liability ends – the accused cannot be liable.6 ‘In the context of a person who acts
involuntarily there is no need to proceed any further in determining liability because such
person will inevitably also lack capacity and, incidentally, mens rea (culpable mental state) as
well. ‘No-one doubts the all-embracing nature of the defence of automatism that swallows up
all other defences.’7

Unlawfulness
Unlawfulness is the requirement which is excluded when what one does is justified. One is justified in
one’s conduct when what one does is the right thing to do - all things considered.8 Possibly the most
well-known justification (known as a ground of justification) is self-defence – more technically known
as private defence. Our law recognises that one’s conduct is justified and therefore lawful in private
defence when, in response to an unlawful imminent9 or commenced attack upon a legally protected
interest, one resorts to the use of necessary and reasonable force against the attacker. 10 Other grounds
of justification recognised in our law include necessity (also known as compulsion or as duress in other
jurisdictions), consent, and de minimis.11 The list of grounds of justification that have been recognised
are not closed so that new grounds of justification may be recognised.12 The ultimate test of
unlawfulness, and for grounds of justification,13 is the legal convictions of the community,14 as informed
by the values in the Constitution.15

6
S v Johnson 1969 (1) SA 201 (AD); S v Chretien 1981 (1) SA 1097 (A); R v Kemp [1957] 1 QB 399 at 407; SHC
18; R v Schoonwinkel 1953 (3) SA 136 (C); R v Victor 1943 TPD 77.
7
J Burchell 'A provocative response to subjectivity in criminal law' (2003) Acta Juridica 36. See also S v Chretien
1981 (1) SA 1097 (A).
8
L Austin Philosophical Papers (1970); G P Fletcher Rethinking Criminal Law (1978); HLA Hart Punishment
and Responsibility (1968) 13-4; S v Trainor 2003 (1) SACR 35 (SCA).
9
Subject to the judgment in S v Engelbrecht 2005 (2) SACR 41 (WLD).
10
R v Zikalala 1953 (2) SA 568 (A); R v K 1956 SA 353 (A); R v Patel 1959 (3) SA 121 (A); S v Jackson 1963
(2) SA 626 (A).
11
De minimis is the defence that our law does not take account of trivialities.
12
On this point, as Snyman notes, all writers in criminal law agree (Snyman Criminal Law 5th ed (2008) 97).
13
Which are merely crystallised and well recognised exceptions to unlawfulness, such as private or self-defence,
necessity, and consent (ibid 97-8).
14
S v Chretien 1981 (1) SA 1097 (A) 1103D-F; S v Gaba 1981 (3) SA 745 (O) 751; Clarke v Hurst NO 1992 (4)
SA 630 (D); S v Fourie 2001 (2) SACR 674 (C) 681A-B. See also, in the context of the law of delict, Minister
van Polisie v Ewels 1975 (3) SA 590 (A) regarding the ‘wrongfulness’ of an omission. It may be worth noting
that while different consequences may flow in the law of delict compared with the criminal law, ‘the test for
unlawfulness is identical in delict and criminal law’ (Visser & Maré Visser & Vorster's General Principles of
Criminal Law Through the Cases 3rd ed (1990) 180). Van der Westhuizen argues that it is impossible for conduct
to be wrongful in one field of law and yet lawful in another (Van der Westhuizen 'Noodtoestand as
Regverdigingsgrond in die Strafreg' University of Pretoria 1979)).
15
Constitution of the Republic of South Africa 108 of 1996. See Carmichele v Minister of Safety and Security
(Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC); Minister of Safety and Security v Van
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Causation
In addition to the above, causation is required for consequence crimes.16 These are crimes
where the conduct which is prohibited is the causing of some prohibited consequence. For
instance, for murder,17 the prohibited conduct is the causing of the death of another human
being. In contrast, other crimes, known as circumstance crimes,18 prohibit a particular state or
circumstance, such as the possession of drugs. Notice the essential distinction is that, for
consequence crimes, the conduct in question must cause some prohibited consequence whereas
for circumstance crimes, this is not true. There is no need for anything to be caused by the
possession of the drugs for that conduct requirement to be satisfied.
When an accused is charged with a consequence crime, the prosecution must prove that
the conduct of the accused caused the prohibited consequence. Our courts adopt a two-phase
enquiry19 into causation. The first stage is an enquiry into factual causation, by means of the
conditio sine qua non test.20 The second stage is an enquiry into ‘legal causation’, based on
policy considerations of reasonableness, fairness, and justice, as informed by various specific
tests of legal causation.21

Duivenboden 2002 (6) SA 431 (SCA); Van Eeden v Minister of Safety and Security (Women's Legal Centre Trust,
as Amicus Curiae 2003 (1) SA 389 (SCA); Snyman Criminal Law 5th ed (2008) 97-8.
16
Also known as materially defined crimes (Snyman Criminal Law 5th ed (2008) 79).
17
Defined as the unlawful intentional killing of another human being.
18
Also known as formally defined crimes (Snyman Criminal Law 5th ed (2008) 79).
19
Minister of Police v Skosana 1977 (1) SA 31 (A) 34; Road Accident Fund v Russel 2001 (2) SA 34 (SCA) para
17; S v Daniëls 1983 (3) SA 275 (A) 324-5 & 31; S v Mokgethi 1990 (1) SA 32 (A) 39.
20
Minister of Police v Skosana 1977 (1) SA 31 (A) 33-5, & 43-4; S v Daniëls 1983 (3) SA 275 (A) 324 & 31; S
v Haarmeyer 1971 (3) SA 43 (A) 47; S v Mokgethi 1990 (1) SA 32 (A) 39. I anticipate that the judgement from
Lee v Minister of Correctional Services (Dudley Lee v Minister of Correctional Services [2012] CCT 20/12
ZACC 30) will not find application in the criminal law on the basis that it appears to disengage the enquiry into
causation from an accused’s conduct or does not alter our law.
This test effectively requires that one imagine away the conduct in question and consider whether the prohibited
consequence would (hypothetically) not have occurred. If, upon imagining the conduct in question away, the
prohibited consequence would (hypothetically) not have occurred, then the conduct in question is regarded as a
factual cause.
21
International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A); S v Mokgethi 1990 (1) SA 32 (A). Standard
Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A) para 18 per Corbett CJ: ‘factors such as
reasonable foreseeability, directness, the absence or presence of a novus actus interveniens, legal policy,
reasonability, fairness and justice’. Road Accident Fund v Russel 2001 (2) SA 34 (SCA) paras 17– 9; Smit v
Abrahams 1994 (4) SA 1 (A).
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Capacity
Capacity is the ability to appreciate the wrongfulness of one’s conduct and to act in accordance
therewith.22 The capacity to appreciate the wrongfulness of one’s conduct is known as the
capacity for insight. The capacity to act in accordance with an appreciation of wrongfulness is
known as the capacity for self-control. Capacity is present only when the accused possessed
both capacities. That is, capacity requires the ability both to appreciate the wrongfulness of
one’s conduct, and the ability to act in accordance with an appreciation of the wrongfulness of
one’s conduct.
Capacity is fundamental to all criminal liability and there are no exceptions. It ‘is an
indispensable component of culpability…’23 and therefore of criminal liability. While our law
knows of an exception (known as strict liability – discussed below) to the rule that fault is
always required in some form – this only excludes the requirement of fault (intention or
negligence).

Fault
Most crimes, certainly all serious crimes, also require some form of ‘fault’. Fault may take the
form of either intention or negligence. Crimes that require no form of fault are known as ‘strict
liability offences’. Strict liability offences are offences for which no form of fault is required,
that is, neither intention nor negligence is required.24 Certain traffic offences are strict liability
offences. It is not that fault is excluded but rather that fault is just irrelevant. Strict liability only
affects whether fault is required and does not affect the requirements of conduct, unlawfulness,
or capacity.25
Fault in the form of intention is required for all common law crimes,26 except culpable
homicide27 and contempt of court by a newspaper editor,28 for which negligence is sufficient.

22
Burchell Principles of Criminal Law 3rd Revised ed (2006) 358; J M Burchell South African Criminal Law &
Procedure: General Principles Vol 1 (1997); F Rumpff Report of the Commission of Inquiry into the
Responsibility of Mentally Deranged Persons and Related Matters (1967). These capacities are derived from the
defence of pathological incapacity (formerly known as the insanity defence) contained in s 78 of the Criminal
Procedure Act 51 of 1977 (Ronald Louw 'S v Eadie: The end of the road for the defence of provocation?' (2003)
16 SACJ 200).
23
Snyman Criminal Law 5th ed (2008) 159.
24
Ibid 245; Burchell Principles of Criminal Law 3rd Revised ed (2006) 545.
25
E M Burchell, J R L Milton & J M Burchell South African Criminal Law and Procedure: General Principles
of Criminal Law 2nd ed Vol 1 (1983) 217; Jonathan Burchell South African Criminal Law & Procedure:
General Principles of Criminal Law 4th ed Vol 1 (2011) 453.
26
Crimes defined by judgments of courts – as opposed to crimes created and defined by parliament (known as
statutory crimes).
27
The unlawful negligent killing of another human being.
28
S v Harber 1988 (3) SA 396 (A).
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Intention in South African criminal law is widely defined to include dolus eventualis -
constructive intention. Dolus eventualis exists when an accused foresees that his/her conduct
poses a risk that the prohibited consequence could occur (or a prohibited circumstance could
arise), reconciles him/herself to the risk, and persists.29
Negligence is judged by the reasonable person test. An accused is judged to have been
negligent if his/her conduct deviates from the standard of conduct of a hypothetical reasonable
person in the circumstances of the accused.30
One additional point – of great importance – must be observed. To incur liability, the
accused’s fault must extend to all the elements (requirements) of the actus reus.31 Thus, where
the form of fault required for an offence is intention (such as for murder), the accused must
intend to kill another human being, but also, to do so unlawfully - that is, s/he must know or
foresee32 that s/he is unlawfully killing another human being. If the form of fault required is
negligence, then it must be the case that the accused negligently33 unlawfully killed another
human being. As a result, an accused who is ignorant or mistaken as to the fact that s/he is
killing another human being or that s/he is doing so unlawfully, has a valid and complete
defence where the form of fault required is intention (murder). However, this defence will only
be valid and complete where the fault required is negligence (culpable homicide), if the mistake
is reasonable – the sort that a reasonable person may make.34

Contemporeneity
Contemporeneity is the principle that requires that the accused’s wrongful conduct must
coincide in time with his/her culpable mental state. 35 It is often regarded as offering a possible

29
S v Ngubane 1985 (3) SA 677 (A); S v De Bruyn 1968 (4) SA 498 (A). Academics have however been critical
of this conception (R C Whiting 'Thoughts on dolus eventualis' (1988) 1 SACJ; Paul T. Smith 'Recklessness in
Dolus Eventualis' (1979) 96 SALJ; Burchell, Milton & Burchell South African Criminal Law and Procedure:
General Principles of Criminal Law 2nd ed Vol 1 (1983) 147ff).
30
Kruger v Coetzee 1966 (2) SA 428 (A); R v Mbombela 1933 AD 269; S v Ngubane 1985 (3) SA 677 (A).
31
S v De Oliveira 1993 (2) SACR 59 (A); Andrew Paizes ''Mistake as to the Causal Sequence' and 'Mistake as
to the Causal Act': Exploring the relation between Mens Rea and the Causal Element of the Actus Reus.' (1993)
110 SALJ.
32
Given that intention is widely defined in our law and includes dolus eventualis (see note 29 and associated
text).
33
Judged by the standard of the reasonable person (see note 30 and associated text).
34
R v Mbombela 1933 AD 269; S v De Oliveira 1993 (2) SACR 59 (A).
35
See R v Chiswibo 1961 (2) SA 714 (FC); S v Masilela 1968 (2) SA 558 (AD). See also S v Goosen 1989 (4)
SA 1013 (A) though the judgement has been subjected to devastating criticism that it confused mistakes relating
to causal sequence with mistakes relating to causal acts (Paizes ''Mistake as to the Causal Sequence' and
'Mistake as to the Causal Act': Exploring the relation between Mens Rea and the Causal Element of the Actus
Reus.' (1993) 110 SALJ.
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defence in which an accused will point to a disjunction in time between his/her wrongful
conduct and culpable mental state.36 Moseneke J in Thebus observed:
The definitional elements or “the minimum requirements necessary to constitute a meaningful
norm”[footnote omitted] for a common law crime are unique to that crime and are useful to
distinguish and categorise crimes. Common minimum requirements of common law crimes are
proof of unlawful conduct, criminal capacity and fault, all of which must be present at the time
the crime is committed.37
The only apparent exception to this is known as antecedent liability - deriving from the
principle of action in libera causa. Under this principle – which is in fact nothing more than
an application of the requirement of contemporeneity38 - an accused who ostensibly commits
wrongful conduct at some time while lacking voluntariness, capacity, or fault, may yet incur
liability for antecedent (prior) conduct, if all (other) requirements of liability are present at the
time of this antecedent conduct, including that this (antecedent) conduct must be causally
linked to the prohibited consequence.39 Antecedent liability therefore does not find application
in the context of circumstance crimes – where it is unable to resolve the problem that an accused
was involuntary in the prohibited circumstance. This is because circumstance crimes require
that the accused must be voluntary in the circumstance and voluntarily causing the prohibited
circumstance does not constitute a crime for the purposes of circumstance crimes.40

Onus of Proof
It is well known that, in criminal trials, the prosecution bears the onus of proof, to prove its
case, that the accused is guilty, beyond a reasonable doubt. This follows from the right to be
presumed innocent in the Constitution. There is only one notable41 exception to this – in respect
of a defence of pathological incapacity,42 in respect of which, the accused must raise more than
a reasonable doubt to succeed with this defence. An accused who raises this defence must show,
on a balance of probabilities (that it is more likely true than not) that s/he lacked criminal
capacity because of a mental illness or defect. Incidentally, even other claims of incapacity

36
See R v Chiswibo 1961 (2) SA 714 (FC); S v Masilela 1968 (2) SA 558 (AD).
37
Emphasis added, S v Thebus 2003 (6) SA 505 (CC) para 37.
38
This is the ‘downside’ to contemporeneity for an accused: that whenever these two elements do coincide in
time, s/he is liable for the crime as having been committed at the time that the two elements do coincide.
39
Burchell South African Criminal Law & Procedure: General Principles of Criminal Law 4th ed Vol 1 (2011)
70-1.
40
Visser & Maré Visser & Vorster's General Principles of Criminal Law Through the Cases 3rd ed (1990) 52.
41
To my knowledge – it is possible that other exceptions exist in respect of some obscure statutory offences.
42
Previously known as an ‘insanity’ defence. It is the defence that one lacks capacity because of a mental illness
or defect.
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(that is, for other reasons) do not place this burden of proof on an accused. Notably, whenever
an offence which places such a burden on the accused has been brought to the attention of our
Constitutional Court, it has struck the burden down as unconstitutional on the basis that any
burden placed on an accused, which allows for his/her conviction, in the face of a reasonable
doubt as to his/her guilt, violates the presumption of innocence.43 It is to be expected that, if
challenged, the burden placed on accused people who seek to raise the defence of pathological
criminal incapacity, will meet a similar fate.
What though does it mean that the prosecution must prove that the accused is guilty, beyond a
reasonable doubt? It means that the accused needs to only raise a reasonable doubt that s/he is
guilty – even a single reasonable doubt – even in respect of a single requirement for liability.
This is the extent of the onus on the prosecution. It ultimately gives effect to the deeply
entrenched principle that, given the serious consequences of a conviction, an accused should
be given the benefit of any doubt.

Conclusion
In conclusion therefore, criminal liability attaches to conduct which is voluntary and unlawful
if the accused had capacity and the relevant form of fault at the time of his/her conduct. In
addition, if the crime is a consequence crime, the accused must have caused the prohibited
consequence. All of this must be proved by the prosecution, beyond a reasonable doubt.

43
S v Coetzee 1997 (3) SA 527 (CC). Arguments that such a violation may be justified seem to rely on the risks
associated with false claims and the difficulties of proof that a prosecution may encounter in having to prove
that an accused possessed capacity (Card Card, Cross and Jones Criminal Law 19th ed (2010) 654-5 see R v
Chaulk (1991) 1 CRR 1 (SCC) in which the Canadian Supreme Court considered the reverse burden a justified
limitation on the presumption of innocence). Both arguments seem to be little more than an appeal to make the
work of a prosecution easier – and for reasonable doubts that would otherwise exist, to be ignored.