ASSIGNMENT 1 QUESTION 1:

S v MOSES 1996 (1) SACR 701 (C)

Summary of the facts

The accused is indicted on two charges, namely murder and robbery. The accused pleaded not guilty to both charges. The accused stated that he was extremely provoked by the deceased, and admitted that he killed the deceased on 27 January 1995. i. The accused and the deceased were homosexual lovers. An agreement was struck up between the accused and deceased, for the accused to buy the deceaseds red VW Fox for R12 000 and that the accused had to sleep with the deceased. On the night of 27 January 1995 the accused and deceased had sex. The accused was extremely provoked by the deceased when he was told, the deceased was HIV positive. The accused proceeded to murder the deceased by hitting him on the side of his head and slicing his throat through the larynx. The accused took the car keys, cars registration papers and left the flat. The caretaker Mr Hawtey summoned Ms Cavaleiro who worked with the deceased. Mr Hawtey had a key to the flat.The deceased body was discovered on 31 January 1995 by the caretaker Mr Hawtey at Selbourne Flats, Rocklands Road, Sea Point.

II

Legal question

Was the accused extremely provoked to raise the provocation and non-pathological criminal incapacity as a defense? III Ratio decidendi

He was provoked to the extent that he lost control over his actions, that is non-pathological criminal incapacity which is a recognized defense in South African Law. See in this regard S v Wiid 1990 (1) SACR 561 (A) where the defense of temporary non-pathological incapacity was successfully raised. The court found that there was doubt whether the accused, at the time of shooting and killing her husband, had the necessary criminal capacity. In the end the court held that the accused had to be given the benefit of the doubt and the conviction was accordingly set aside. See also S v Campher 1987 (1) SA 940 (A), S v Laubscher 1988 (1) SA 163 (A), S v Potgieter 1994 (1) SACR 61 (A). Enough evidence was placed before the court to warrant the following findings: i. ii. iii. The accused has a history of poor control and anger. He is susceptible to anger outbursts and violence and this is part of his personality make-up. The accused killed a person whom he cared for and had no motive or reason to kill the deceased and was clearly not a premeditated killing. On the night in question the accused was subjected to extreme provocation.

iv.

The killing itself was based on a number of factors such as, suppressed anger relating to the accuseds dysfunctional family background and sexual abuse by his father, the accuseds vulnerability at the time of the killing that his personal life was in shambles and he showed signs of severe depression, the provocation itself and the subjective belief that the accused was going to die a horrible death. It was a combination of these factors which led to the accuseds controls collapsing at the time of the killing. Finding

IV

Our unanimous finding is that the State has failed to discharge the onus resting on it to prove beyond a reasonable doubt that the accused had the requisite criminal capacity at the time of the killing. Accordingly, the accused is acquitted.

QUESTION 2:
Louw, R. S v Eadie: the end of the road for the defence of provocation? South African Journal of Criminal Justice 2003, Vol. 16, Iss 2, p. 200-206