CONSENT

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 conduct lawful. To generalise about consent as a ground of justification in criminal law is possible only to a limited degree, since consent can only operate as a ground of justification in respect of certain crimes, and then only under certain circumstances.

The idea that consent may render an act not unlawful is sometimes expressed in the Latin maxim volenti non fit iniuria. Freely translated these words mean ``no wrongdoing is committed in respect of somebody who has consented (to the act concerned)''.

Requirements for a valid plea of consent

In those crimes in which consent may operate as a ground of justification, the consent

must comply with certain requirements in order to be valid, that is in order to afford X a defence. We now consider these requirements.

We first summarise the requirements for this ground of justification in the following framework:

The consent must be

(1) given voluntarily

(2) given by a person who has certain minimum mental abilities

(3) based upon knowledge of the true and material facts

(4) given either expressly or tacitly

(5) given before the commission of the act (consent given later/afterwards does not render the act lawful)

(6) given by the complainant him or herself

OFFICIAL CAPACITY

An act which would otherwise be unlawful is justified if X, by virtue of her holding a public office, is authorised to perform the act, provided the act is performed in the course of the exercise of her duties.

•To physically grab another without her consent amounts to assault. Nevertheless X does not commit assault in the following circumstances, despite the fact that she has grabbed Y: X is a police official. Y has committed an offence in X's presence. X attempts to arrest Y for the commission of the offence. Y resists arrest and runs away from X. X runs after Y and succeeds in getting hold of herby diving her to the ground.

CULPABILITY AND CRIMINAL CAPACITY

The mere fact that a person has committed an act which complies with the definitional elements and which is unlawful is not yet sufficient to render him 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, he can be reproached or blamed for his conduct. This will be the case if he has committed the unlawful act in a blameworthy state of mind.

Culpability and unlawfulness

Whether culpability is present need be asked only after the unlawfulness of the

act has been established. It would be nonsensical 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 offences

as for normal people. Criteria employed to ascertain the unlawfulness of an act do

not refer to the personal characteristics of the perpetrator.

vHowever, when one comes to the question of culpability, the picture changes: the

focus now shifts to the perpetrator as an individual, and the question one asks is

whether this particular person, considering his personal characteristics,

aptitudes, gifts, shortcomings and mental abilities, as well as his knowledge,

can be blamed for his commission of the unlawful act.

culpability = criminal capacity + either intention

  or negligence

Criminal capacity and forms of culpability

Before it can be said that a person acted with culpability, it must be clear that such a person was endowed with criminal capacity. The term ``criminal capacity'‘ refers to the mental ability. This will become clearer in the discussion of criminal capacity which follows. We shall see that mentally ill persons and young children, for example, lack criminal capacity. Before X can be blamed for his conduct, he must at least have the mental capacities described above.

X can only be blamed for his conduct if the law could have expected him to avoid or shun the unlawful act or not to proceed with it. Thus, for instance, the legal order cannot blame a mentally-ill (``insane'') person or a six-year-old child who has committed an unlawful act, for that act, since they cannot be expected to act lawfully. Neither can X's conduct be described as blameworthy in a case such as the following: 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 X's. But for the requirement of culpability, X would be guilty of theft. In the circumstances, X is unaware that his conduct is unlawful.

The principle of contemporaneity

The culpability and the unlawful act must be contemporaneous. This means that,

in order for a crime to have been committed, 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 only existed prior to 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.

To illustrate this by a fictitious example: X wishes to shoot his mortal enemy Y.

On the way to the place where the murder is to be committed, X accidentally runs

down and kills a pedestrian. It turns out that, unbeknown to X, the pedestrian

was in fact Y. In these circumstances, although there is undoubtedly a causal

connection between X's act and Y's death, X could not be convicted of murdering

Y. At the time of the accident X lacked the necessary intention to kill.

Masilela 1968 (2) SA 558 (A)

CRIMINAL CAPACITY

Definition

The term ``criminal capacity'' refers to the mental abilities or capacities which 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, and

(2) act in accordance with such an appreciation of the wrongfulness of his act or

omission

Two psychological legs of test

1.Ability to appreciate wrongfulness (cognitive- ability to differentiate)

2.Ability to act in accordance with such appreciation (conative-power to resist)

The first component (or first leg of the test) may be expressed in various ways: besides the expression ``ability to appreciate the wrongfulness of the act'', one may also speak of the ``ability to appreciate the unlawfulness of the act'' or ``the ability to distinguish between right and wrong''. Normally, it does not matter which of these expressions one uses; they are simply synonyms.

The second psychological component, incorporated in the second leg of the test to determine criminal capacity, refers to a person's ability to conduct himself in accordance with his insight into right and wrong. This is known as a person's conative mental function. This function relates to a person's ability to control his behaviour in accordance with his insights -which means that, unlike an animal, he is able to make a decision, set himself a goal, and pursue it; he is also able to resist impulses or desires to act contrary to what his insights into right and wrong have revealed to him. Here, the key word or idea is ``self-control''.

Defences excluding criminal capacity

1.Mental illness (insanity)

2.Youth

3.Non pathological criminal incapacity

THE DEFENCE OF NON-PATHOLOGICAL CRIMINAL INCAPACITY

Pathological means emanating from a desease,All the instances in which X relies on criminal incapacity as a defence, other than cases in which he relies on mental illness and youth, fall under this heading. One can also refer to this defence as the ``general defence of criminal incapacity'' in order to distinguish it from the particular defences of mental illness and youth, which also deal with criminal incapacity.

In Laubscher 1988 (1) SA 163 (A), the Appeal Court first described this defence as

``non-pathological criminal incapacity''. The court adopted this description of the

defence in order to distinguish it from the defence of mental illness created in

section 78 of the Criminal Procedure Act. (This latter defence will be discussed later on.)

 The court stated that the defence created in section 78 applies to pathological

disturbances of a person's mental abilities - in other words, the cases in which

these disturbances can be traced to some illness of the mind. The defence of non pathological criminal incapacity, on the other hand, may succeed without any need of proving 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 an ailing or sick (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.

Please read on the case of Eadie 2002 (1) SACR 663 (SCA). Read on the position before aand after 2002.

Criminal capacity-mental illness and youth

MENTAL ILLNESS

Criminal capacity may be excluded by the mental illness or abnormality of the accused (X). The defence of mental illness was previously known as the defence of ``insanity''. The latter term has, however, fallen into disfavour in modern psychology. Some of the most important sources dealing with the subject refer to it as ``mental abnormality'' or ``mental illness'', and for this reason we prefer to use the expression ``mental illness''.

The test to determine the criminal capacity of mentally abnormal persons is contained

in section 78(1) of the Criminal Procedure Act 51 of 1977, which 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,

üshall not be criminally responsible for such act or omission

Note that the words ``shall not be criminally responsible'' in this section in fact mean ``shall lack criminal capacity''

Before discussing the contents of section 78(1) the following diagram setting out the test is provided:

Mental illness or mental defect

We first consider the first leg of the test in section 78(1), namely that at the time of the commission of the act X must have been suffering from a mental illness or mental defect. This requirement means the following:

(1) The words ``mental illness'' or ``mental defect'' refer to a pathological disturbance of the mental faculties. ``Pathological'' means ``sick'' or ``diseased''. The words ``mental illness'' or ``mental defect'' do not refer to a mere temporary clouding of the mental faculties due to external stimuli such as alcohol, drugs or even provocation. Thus if X temporarily loses her wits because a brick fell onto her head, her condition could not be described as a ``mental illness''.

(2) 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 determined by the court with the aid of expert evidence given by psychiatrists. The psychiatrists will examine X while she is detained in a psychiatric hospital or any other place designated by the court and then report their findings to the court.

(3) 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 of the illness was organic (ie stemmed from X's physical organs, as opposed to her mind). An example in this respect is arteriosclerosis (ie a hardening of the walls of an artery).

(4) The duration of the mental illness is not relevant. It may be of either a

permanent or a temporary nature. In the latter case it must of course have

been present at the time of the act. If X was mentally ill before and after the

act but she committed it at a time when she happened to be sane, she does

not lack criminal capacity. Such a lucid interval between periods of mental

illness is referred to in legal terminology as a lucidum intervallum (``lucid

interval'').

(5) Although intoxication in itself does not constitute mental illness, the chronic abuse of liquor can lead to a recognised mental illness known as delirium tremens (Bourke 1916 TPD 303; Holliday 1924 AD 250). If X committed the act while she was in this condition and the condition resulted in her lacking the required mental abilities, she may successfully rely on the defence.

(6) A ``mental defect'' can be distinguished from a ``mental illness'' in that it is characterised by an abnormally low intellect which is usually evident

already at an early stage and is of a permanent nature. ``Mental illness'' on

the other hand, usually manifests itself later in life and is not necessarily of a

permanent nature. A mental defect usually hinders a child's development or

prevents the child from developing or acquiring elementary social and

behavioural patterns.

Onus of proof

Section 78(1A) of the Criminal Procedure Act 51 of 1977 provides that every person is presumed not to suffer from a mental illness or mental defect until the contrary is proved on a balance of probabilities. According to section 78(1B), the burden of proving insanity rests on the party raising the issue.

This means that if the accused raises the defence of mental illness the burden of proving that she suffered from mental illness at the time of the commission of the unlawful act rests upon her. If the state (prosecution) raises the defence, the burden of proof rests on the state.

Verdict

If the defence of mental illness is successful, the court must find X not guilty by reason of mental illness or mental defect, as the case may be (s 78(6)). The court then has a discretion (in terms of s 78(6)) to issue any one of the following orders:

(1) that X be admitted to, and detained in, an institution stated in the order and treated as if she were an involuntary mental-health-care user contemplated in section 37 of the Mental Health Care Act 17 of 2002

(2) that X be released subject to such conditions as the court considers appropriate

(3) that X be released unconditionally

An example of a case in which the court may decide to release X unconditionally is a case in which the evidence shows that, although X might have suffered from mental illness when she committed the wrongful act, at the time of her trial she was, mentally, completely normal again.

There is another possible order that the court can make in certain serious cases

1)If X has been charged with

(i) murder

(ii) culpable homicide

(iii) rape or

(iv) another charge involving serious violence, or

(2) if the court considers it necessary in the public interest the court may direct that X be detained in a psychiatric hospital or a prison until a judge in chambers (i.e., upon the strength of written statements or affidavits placed before the judge, without evidence necessarily being led in open court) makes a decision in terms of section 47 of the Mental Health Care Act, 2002. The judge in chambers may order that the state patient

(1) remain a state patient

(2) be reclassified and dealt with as a voluntary, assisted or involuntary mental health care user in terms of chapter V of the above-mentioned Act

(3) be discharged unconditionally

(4) be discharged conditionally

(3) 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 of the illness was organic (ie stemmed from X's physical organs, as opposed to her mind). An example in this respect is arteriosclerosis (ie a hardening of the walls of an artery).

(4) The duration of the mental illness is not relevant. It may be of either a

permanent or a temporary nature. In the latter case it must of course have

been present at the time of the act. If X was mentally ill before and after the

act but she committed it at a time when she happened to be sane, she does

not lack criminal capacity. Such a lucid interval between periods of mental

illness is referred to in legal terminology as a lucidum intervallum (``lucid

interval'').

(5) Although intoxication in itself does not constitute mental illness, the chronic abuse of liquor can lead to a recognised mental illness known as delirium tremens (Bourke 1916 TPD 303; Holliday 1924 AD 250). If X committed the act while she was in this condition and the condition resulted in her lacking the required mental abilities, she may successfully rely on the defence.

(6) A ``mental defect'' can be distinguished from a ``mental illness'' in that it is characterised by an abnormally low intellect which is usually evident

already at an early stage and is of a permanent nature. ``Mental illness'' on

the other hand, usually manifests itself later in life and is not necessarily of a

permanent nature. A mental defect usually hinders a child's development or

prevents the child from developing or acquiring elementary social and

behavioural patterns.

Onus of proof

Section 78(1A) of the Criminal Procedure Act 51 of 1977 provides that every person is presumed not to suffer from a mental illness or mental defect until the contrary is proved on a balance of probabilities. According to section 78(1B), the burden of proving insanity rests on the party raising the issue.

This means that if the accused raises the defence of mental illness the burden of proving that she suffered from mental illness at the time of the commission of the unlawful act rests upon her. If the state (prosecution) raises the defence, the burden of proof rests on the state.

Verdict

If the defence of mental illness is successful, the court must find X not guilty by reason of mental illness or mental defect, as the case may be (s 78(6)). The court then has a discretion (in terms of s 78(6)) to issue any one of the following orders:

(1) that X be (3) that X be released unconditionally

 

YOUTH

ACTIVITY

X, a 13-year-old girl, has no home. Every day, she stands on a corner of a street next to the robot, begging for money. Her eighteen-year-old friend, Y, tells her that she is wasting her time; she should rather resort to crime. She also tells her that she can come and stay at her home if she would be prepared to rob the drivers of motor cars of their cell phones. X decides that she has had enough of begging. The next day, she smashes a car window at the robot and grabs the car-owner's cell phone. She is caught and charged with robbery. Consider X's chances of succeeding with the defence that she lacked criminal capacity at the time of the commission of the offence.

FEEDBACK

X may argue that she lacked criminal capacity on the grounds of her age. Children between the ages of seven and fourteen are rebuttably presumed to lack criminal capacity. However, the closer the child comes to the age of fourteen years, the weaker the presumption that she lacked criminal capacity. In other words, the older the child, the slimmer the chances of success with this defence. It may never-The less be argued that because X had been influenced by her older friend, she had lacked the ability to resist the temptation to commit a criminal act.

 This refers to the second leg of the test for criminal capacity, namely that the child must have had the capacity to act in accordance with her appreciation of right and wrong. However, as there was no compulsion or an order from an older person (such as a parent) to commit a crime, and since X is already near the age of fourteen, it is unlikely that X would succeed with this argument. Look at the case law discussed in this regard in the prescribed book.

SUMMARY

Mental illness

(1) The test to determine whether X may succeed with the defence of mental illness

(2) The test to determine whether X may succeed with the defence of mental illness is set out in a statutory provision, namely section 78(1) of the Criminal Procedure Act.

(3) The abovementioned test comprises a pathological leg (which refers to a pathological disease which X must have) and a psychological leg (which refers to X's cognitive and conative functions)

(4) The onus of proving the defence of mental illness rests on the party raising the defence.

(5) If this defence succeeds, X is found not guilty, but the court may order that X be detained in an institution or a psychiatric hospital or prison.

Youth

(6) There is an irrebuttable presumption that a child who has not yet completed his or her seventh year of life, lacks criminal capacity.

(7) There is a rebuttable presumption that a child between the ages of seven and 14 years lacks criminal capacity.

(8) The test to determine whether a child between the ages of seven and 14years has criminal capacity, is the same as the general test for criminal capacity.

FEEDBACK

X may argue that she lacked criminal capacity on the grounds of her age. Children between the ages of seven and fourteen are rebuttably presumed to lack criminal capacity. However, the closer the child comes to the age of fourteen years, the weaker the presumption that she lacked criminal capacity. In other words, the older the child, the slimmer the chances of success with this defence. It may never-The less be argued that because X had been influenced by her older friend, she had lacked the ability to resist the temptation to commit a criminal act.

 This refers to the second leg of the test for criminal capacity, namely that the child must have had the capacity to act in accordance with her appreciation of right and wrong. However, as there was no compulsion or an order from an older person (such as a parent) to commit a crime, and since X is already near the age of fourteen, it is unlikely that X would succeed with this argument. Look at the case law discussed in this regard in the prescribed book.

SUMMARY

Mental illness

(1) The test to determine whether X may succeed with the defence of mental illness

(2) The test to determine whether X may succeed with the defence of mental illness is set out in a statutory provision, namely section 78(1) of the Criminal Procedure Act.

(3) The abovementioned test comprises a pathological leg (which refers to a pathological disease which X must have) and a psychological leg (which refers to X's cognitive and conative functions)

(4) The onus of proving the defence of mental illness rests on the party raising the defence.

(5) If this defence succeeds, X is found not guilty, but the court may order that X be detained in an institution or a psychiatric hospital or prison.

Youth

(6) There is an irrebuttable presumption that a child who has not yet completed his or her seventh year of life, lacks criminal capacity.

(7) There is a rebuttable presumption that a child between the ages of seven and 14 years lacks criminal capacity.

(8) The test to determine whether a child between the ages of seven and 14years has criminal capacity, is the same as the general test for criminal capacity.

Intention I

THE TWO ELEMENTS OF INTENTION

Intention, in whatever form, consists of two elements, namely a cognitive and a conative element.

The cognitive element consists in X's knowledge or awareness of

• the act (or - which is the same thing - the nature of the act)

•the existence of the definitional elements

•the unlawfulness of the act

The conative element consists in X's directing his will towards a certain act or result: X decides to accomplish in practice what he has previously only pictured to himself in his imagination. This decision to act transforms what had until then merely been ``day-dreaming'', ``wishing'' or ``hoping'' into intention. In legal literature intention is also known as dolus.

DEFINITION OF INTENTION

A person acts or causes a result intentionally if

•he wills the act or result

•in the knowledge

üof what he is doing (ie the act)

ü that the act and circumstances surrounding it accord with the definitional elements, and

üthat it is unlawful

Defined even more concisely, one can say that intention is to know and to will an act or a result.

THE DIFFERENT FORMS OF INTENTION

Direct intention (dolus directus)

Definition

A person acts with direct intention if the causing of the forbidden result is his aim or goal.

Example

X wants to kill Y. X takes his revolver, presses it against Y's head and pulls the trigger. The shot goes off and strikes Y in the head. Y dies instantly.

Remark!!!!

Note that the reason why the person performs the act or causes the result is

irrelevant. In the example above it therefore makes no difference whether X kills Y because he hates him, or because Y is dying of a terminal illness and X wishes to relieve him of the pain he is experiencing.

Indirect intention (dolus indirectus)

Definition

A person acts with indirect intention if the causing of the forbidden result is not his main aim or goal, but he realises that, in achieving his main aim, his conduct will necessarily cause the result in question.

Example

(1) X shoots through a closed glass window at a target. His main purpose is to hit the target, but he realises that by doing this he must necessarily also shatter the window. If he decides nevertheless to act to attain his main

purpose, he naturally also wills those consequences which he realises must

invariably accompany his main purpose. If he shoots at the target and

shatters the window, he cannot be heard to say that he never intended to

shatter the window.

(2) X's merchandise is insured and is stored in Y's building. To obtain the insurance money, X sets the merchandise on fire, fully realising that the building itself must of necessity catch alight. When this happens, the building burns down. X may be charged with arson because he had the intention to set the building on fire -Kewelram 1922 AD 213.

Remark

This form of intention is present when a person visualises what he wants to achieve, realises that, in order to achieve it, something else will necessarily be caused, but nevertheless proceeds with his conduct.

Dolus eventualis

Definition

A person acts with dolus eventualis if the causing of the forbidden result is not his main aim, but

(1) he subjectively foresees the possibility that, in striving towards his main aim, his conduct may cause the forbidden result and

(2) he reconciles himself with this possibility.

Examples of dolus eventualis:

(1) X disconnects sections of a railway track in order to derail a train. He does

not desire to kill other people, because his immediate goal is to commit sabotage and in this way to express the resentment he feels against the state.

He is nevertheless aware of the possibility that people may die if the train is

derailed, and he reconciles himself to this possibility. If he succeeds in

derailing the train, and people die, it is futile for him to allege that he did not

intend to kill people (facts analogous to those in Jolly 1923 AD 176).

(2) X wants to burn down a building. He foresees the possibility that Y may be

inside it, but nevertheless proceeds with his plan, and sets fire to the building. Y is indeed inside, and dies in the flames. In the eyes of the law X

intentionally caused Y's death.

THE TEST FOR INTENTION IS SUBJECTIVE

The test in respect of intention is purely subjective. The court must determine

what the state of mind of that particular person Ð the accused (X) Ð was when

he committed the act. When determining whether X had intention, the question is

never whether he should have forseen 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 person. To do this is to apply the

test in respect of negligence, which is objective. In deciding whether X had intent

the question is always: How did X perceive the situation, what knowledge did he

have, and did he will the consequence or foresee it as a possibility?

THE DISTINCTION BETWEEN MOTIVE AND INTENTION

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 (Peverett 1940 AD 213). 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.

GLOSSARY

dolus    intention

dolus directus   direct intention

dolus indirectus     indirect intention

dolus eventualis   a form of intention in which X foresees a possibility   and reconciles himself to such possibility

Intention II
Mistake

MISTAKE NULLIFIES INTENTION

This form of mistake can occur only in the context of materially defined crimes, such as murder. X believes that the result will be brought about in a certain manner; the result does ensue, but in a manner which differs from that foreseen by X. The following are examples of this type of mistake:

• X sets about killing Y by pushing her off a bridge into a river, expecting that she will drown; in fact, Y is killed because in her fall she hits one of the pillars of the bridge.

• X shoots at Y, but misses; Y, who suffers from a weak heart and nerves, in fact dies of shock