Documente Academic
Documente Profesional
Documente Cultură
PUNISHMENT THEORIES
1. S V TABETHE; DPP
CONDUCT
2. MINISTER
VAN
POLISIE
TABETHE 2011
V
EWELS 1975
CAUSATION
3. MINISTER OF POLICE V SKOSANA 1977
4. S V DANILS EN N ANDER 1983 (A)
5. S V MOKGETHI EN ANDERE 1990
6. S V TEMBANI 2007 (SCA)
UNLAWFULNESS
7. S V ENGELBRECHT 2005
8. EX PARTE DIE MINISTER VAN JUSTISIE: IN
1967 (A)
9. S V GOLIATH 1972 (A)
10.
S V MOSTERT 2006
11.
S V W EN N ANDER
CRIMINAL
12.
13.
FAULT:
14.
15.
16.
17.
18.
RE
CAPACITY
S V CHRETIEN 1981
S V EADIE 2002
INTENTION
S V GOOSEN 1989
S V DE BLOM
S V NGUBANE
S V JOSHUA 2003 (SCA)
S V NAIDOO 1993
FAULT: NEGLIGENCE
19.
S V VAN DER MESCHT 1962
20.
S V VAN AS 1976
PARTICIPATION IN CRIME: COMMON PURPOSE
21.
S V SAFATSA AND OTHERS 1988 (A)
22.
S V LUNGILE AND ANOTHER 1999
23.
S V MZWEMPI 2011
PARTICIPATION
IN CRIME : ACCOMPLICE
VAN WYK
24.
WILLIAMS
EN N
ANDER 1980
INCOMPLETE CRIMES
25.
R V SCHOOMBIE 1945
26.
R V HLATWAYO 1933
27.
R V DAVIES 1956 (A)
PUNISHMENT
Facts:
Tabethe raped his life companions fifteen year old daughter
Daughter had forgiven him, and required that he remain out of
prison to support her and her family
Court a quo found this case to be a good opportunity for
restorative justice
DDP appealed the case on the grounds that the seriousness of
the crime was undermined and the minimum sentence for
statutory rape, 10 years imprisonment, was forgone
Legal question:
Could restorative justice be fair and just when used in serious
cases of rape such as this one?
Ratio Decidendi:
Tabethe abused his position of power and trust in the
household and has grossly violated the basic human rights of
the child
Child was suffering mentally and emotionally, so much so that
her school work was affected
The minimum sentence of 10 years imprisonment for rape, as
found in the Criminal Law Amendment Act 105 of 1997 should
be upheld
The seriousness of the crime requires the punishment to be
fitting to satisfy the interests of the community
Judge in the court a quo focused too much on what the victim
wanted
Restorative justice does not have a place in more serious
crimes such as rape and murder
Judgment:
Decision
Appeal dismissed
Therefore, there is a positive legal duty on policemen
Minister liable for damages
Judgement
Appeal was dismissed
Majority of the judges found that earlier medical treatment
could have saved his life
Significant connection between negligent conduct
(slow/delayed) and death of Skosana
Constables failed to act reasonably
Minority judgement held that Skosana had sustained serious
injuries so medical treatment would not have helped
Not sufficient to create a link, he would have died
regardless
C AUSATION:
LEGAL CAUSATION
C AUSATION:
LEGAL CAUSATION
Decision
Andries Danils was held liable for murder (4/5 judges
agreeing) where as 2/5 judges found Samuel liable thus he is
liable for attempted murder
UNLAWFULNESS:
PRIVATE DEFENCE
UNLAWFULNESS:
PRIVATE DEFENCE
Private defence can be used for cases such as this (in respect
of protecting ones property with a lethal weapon) but it is not
successful in this case due to the written sign being
insufficient warning to a would-be robber.
UNLAWFULNESS:
NECESSITY
Judgment:
Due to the fact that Goliath had no other option but to help or
risk his own life, and that it is human nature to value ones
own life above the life of an innocent third party, the defence
of necessity was allowed and the appeal dismissed
Court a quo judgment upheld
Minority judgement:
J Wessels whether possible to exclude fault as a requirement
UNLAWFULNESS:
PUBLIC OFFICE
UNLAWFULNESS:
CONSENT
S V W EN N ANDER
Parties
Complainants: two girls aged 13 at the time, another ages 9 at
the time
Defendants: Husband and wife (wife was a Sunday school
teacher)
Legal facts
Man and wife lured young girls between the age of 9 and 13
into their home, and told them that they could not have
children of their own, and that if the girls slept with the
husband, they would be cured of their infertility.
Girls accused the defendant of rape as man and woman had
been fraudulent and therefore they had not given consent (not
real, informed or voluntary)
Defendants claim that the girls had consented to the sex; they
knew what was being asked of them and had gone along
willingly.
Legal Question
Can the girls willingness be considered consent when the
purpose of the sexual intercourse had been misrepresented,
even though the nature of the act was fully communicated?
Ratio Decidendi
Court a quo
Dismissed their defence of consent and convicted the
defendants on 3 charges of rape and accomplice to rape.
Appeal
Any girl who has sex, consenting or not, who is under the
age of 12 will be considered to have been raped. Therefore
the charge of rape in terms of the 9 year old girl succeeded.
The two girls aged 13 cannot claim to be fully ignorant at
their age
But both of girls were under the legal age of consenting (age
16), and therefore the accused were guilty of contravening s
14(1)(a) of the Sexual Offences Act 23 of 1957.
Although the man and wife lied about the sexual intercourse
curing their infertility, they did not hide any aspects that
were expected of the girls therefore they were fully
informed about the nature of the act
Judgment
ELEMENT
S V CHRETIEN 1981
Legal facts
Accused was at a party & drank a lot
Chretien decided he wanted to leave got into car to drive off
(under the influence)
He saw that people were standing in the road, but he was
convinced they would move out of the way. But they didnt 1
dead, 5 injured
Charged: murder & attempted murder
He argued that he lacked intent court accepted evidence
acquitted
Legal question
Can intoxicated accused be held liable for assault (which
requires intent) on a charge of attempted murder?
Ratio
Court a quo
Judge said he was bound by Johnson-case
Court found him guilty of culpable homicide but acquitted him
of attempted murder & common assault
Appellate division: Court decision (Judge Rumpff)
Legal principles
Common assault requires an intention to assault if intention is
lacking due to voluntary intoxication, then Chretein cannot be
convicted on this charge
Intoxication may influence criminal liability in exactly the same
way as youth, insanity, etc.
Criminal liability depends on degree of intoxication: may
exclude voluntary conduct, criminal capacity or intent or be a
mitigating factor at sentencing
- Involuntary intoxication - If you commit a crime in an
intoxicated state you wont be held liable for the
consequences.
- Actio in libera causa - Held criminally liable when you drink
in order to gain the courage to commit an act.
Applied to facts
Chretien said he wasn't able to form the intention to harm the
people. He never argued that he lacked criminal capacity, only
intention to kill anybody.
Judge Rumpff said that if you cannot form intention then you
cannot be found guilty of a crime requiring it, therefore
Chretien could not be found guilty of common assault [Judge
confirmed the court a quos findings]
Intoxication can affect your mental abilities
It depends on degree of intoxication: Chretien was acquitted
due to a lack of fault (intention), not due to lack of criminal
capacity
Rumpff argues that if missing an element of the crime, due to
intoxication, it is easier to accept than just following policy
considerations
Must consider all the relevant evidence and degree of
intoxication in deciding if successful defence or not
This defence is difficult to raise: requires a large amount of
evidence
The judge rejected the distinction between general and specific
intent - intention is intention. The distinction no longer forms
part of SA law
Judgement
Accused was acquitted based on defence of lack of intent
Appeal is dismissed
CRIMINAL
CAPACITY: PROVOCATION
State of mind
Human experience
Social norms
Social interactions
Use policy considerations rather than legal principles
Court found that he knew what he wanted to do lost temper
and not the ability to control himself
Snyman
Rejects: lenient approach
Rejects: unyielding
approach
Suggests going back to view
transkeian penal code approachish (find guilty of lesser crime)
The defence of provocation in
favour of a middle ground which
views provocation as a partial
defence
ELEMENT
S V GOOSEN 1989
Legal facts
Accused was part of a gang
The gang planned to rob an old man. They waited until the old
man came out from his building and got into his car they
followed him, stopped him and confronted him.
One robber had semi-automatic weapon and others hit him
The old mans car rolled forwards and gun went off
accidentally and killed the old man.
The accused is the man holding the gun, Mazibuko, who
claimed that he had pulled the trigger by accident or
involuntarily
All of the members of the gang were charged with murder &
robbery (common purpose)
Goosen had bad legal advisor, told him to plead guilty
followed advice tried separately from other robbers
Other 3 gang members were acquitted of all charges
Legal question
Can Goosen be held responsible for the death of the deceased
when the manner in which the deceased died was not
foreseen i.e. it differed markedly from the manner in which the
accused foresaw?
Ratio (appeal)
Cases of common purpose: state does not need to prove
causation Goosen could not use defence of novus actus
intervenius
Common purpose:
Active participation in common purpose + requisite
guilty mind (doesnt matter that did not contribute
casually to unlawful consequence)
Not required that there is causation between their
association and unlawful consequence
Did
it
matter
that
the
death
occurred
in
a
substantially/markedly different way to which Goosen
foresaw?
He had foreseen the possibility that one of his fellow
robbers might intentionally shoot the deceased killing
him
Court used inferential reasoning (subjective test): took
into account the strange way death occurred, Goosen
Judgement
Intent element is not satisfied if (foreseen) consequence
occurs in a way which differs markedly from the way in which
the accused foresaw the causal sequence
Appellant was not found guilty of murder but guilty of culpable
homicide [6 years imprisonment]
IGNORANCE
OF THE LAW
S V DE BLOM 1977
Legal facts
A wealthy Argentinean woman was living in South Africa and
wanted to fly home to visit her family
She was flying from Cape Town Airport but the police were
tipped-off and stopped her and found $40 000 cash and a case
of valuable jewellery (hidden in lining of bag) in her luggage
Both money & jewellery more than allowed amount to take out
of country [contravene Currency and Exchange Act 9 and
Exchange Control Regulation]
Defence: accused didnt know it was a crime (ignorance of the
law)
Legal question
Can ignorance of the law be a defence in South Africa?
Judgement (appeal): Judge Rumpff!
INTENT:
1st situation:
- Malin: he broke bottle, sworn at Joshua and begun
approaching him. Malin was a gangsta. The courts
allowed Joshua to succeed with private defence, as
he could not run away.
- Fabian & Mervin: Both were shot from the side. Court
found that they were not advancing towards Joshua
but they were still so close to Joshua that he could
have believed that they were a danger. Joshua guilty
of culpable homicide. [If really thought he was in
danger putative PD].
- Ivan: no intention = no crime. But there is no such
thing as putative negligent murder. Therefore,
acquitted of crime.
2nd situation
- No defence for killing people in house
- Guilty of murder on all counts
INTENT:
S V NAIDOO 1997
Legal facts
A young man and his wife & child were in their family home
He heard noise at the gate and called out but received no
response.
The family had many attempted robbery and were frightened
He had gun with him and fired 1 shot
The person at the gate was Naidoos father whom he had shot
and killed
Ratio
He foreseen the possibility of shooting somebody the gun
was at shoulder height.
Important that he had no reason to kill dad did not intend to
kill him
Have defence?
- Private defence? No, there was no unlawful attack thus the
requirements were not met
- An accused can only be guilty of murder where there was a
consciousness of wrongfulness (knew acted unlawfully).
- Naidoo genuinely thought he was entitled to shoot
because he subjectively thought he was in danger
- Factors taken into account: he was young, previous
burglaries, genuine belief that person outside, dangerous
neighbourhood, only man in the house want to protect
his family, he would not have shot if known it was dad.
- The courts found that the accused did not have dolus
(consciousness of wrongfulness)
- Negligence? Court found that objectively, a reasonable
person wouldnt have fired but rather have taken other
steps before shooting such as firing a warning shot, raised
an alarm, closed the door. The accused had options
available to him.
The court found that Naidoos shot was premature and
excessive he did not act reasonably
Judgement
Guilty of culpable homicide
N EGLIGENCE
DOCTRINE
N EGLIGENCE
S V VAN AS 1976
Legal facts
A young, relatively strong man got into an argument with an
older fat man. The big man got very angry with the appellant
and threatened him. The appellant responded by hitting the
big man in the face.
The man lost his balance and fell to the ground, hitting his
head on the cement and later dying from this injury.
Legal Question
Can negligence be applied when the accuseds victim had
died in abnormal circumstances?
Ratio: Judge Rumpff
Court a quo
Found the appellant guilty of culpable homicide due to his
negligence for not foreseeing that the big man would hit his
head and possibly die.
Appellate Division
Appellant could not say he lacked causation on the basis of
novus actus because of the thin skull rule you take your
victim as they come
The causation requirement is met: there is no novus actus
To determine whether the accused was negligent, the
reasonable man test must be used.
Would the reasonable man have foreseen the death of the
deceased in such a way, and would the reasonable have
taken steps to prevent this? The answer for these two
questions has to be no.
Therefore, the appellant has indeed complied with the
reasonable man and cannot be held liable for the death of the
deceased.
Judgment
Appeal is upheld and the conviction of culpable homicide is
dismissed and replaced with a conviction of assault.
C OMMON
PURPOSE
Judgment
Appeal is dismissed, charges are upheld.
C OMMON
PURPOSE
COMMON PURPOSE
S V DUBE 2010
Legal facts
A group of bank robbers plan to drill into FNBs vault
meticulously planned
They bribed the security guard & policemen
They were so confident that they decided not to take their
guns with but the plan went wrong when the security guard
went to other policemen and told about the plan
Robber had a crowbar and policeman thought was a threat
shot & killed
Legal question
Did other robbers foresee possibility one of them might be
killed and can they be held liable for the death of the robber
based on this knowledge/foreseeability?
Ratio
Facts: did not take weapons from which the court can infer
that the other robbers did not foreseen that one of them might
have died
Judgement
Appellants did not subjectively foresee (no dolus eventualis) =
not guilty of murder charge
COMMON PURPOSE
S V MZWEMPI 2011
Legal facts
Attack between two clans resulting in several deaths , injuries,
burnt huts.
A few men were caught and charged with the collective
actions of the clan
The other clan had known there was a plan to attack and had
attempted to escape
Used common purpose doctrine to charged the accused with
murder, attempted murder and arson.
Appeal case: appeal against the convictions in the trial Court.
Legal Question
When applying the common purpose doctrine based on active
association, should the court use the limited scope known as
the Safatsa/Mgedezi method, or the wider scope, known as
the Nzo mthod?
Ratio Decidendi
Evidence and eye witnesses were used to determine how the
accused were involved (actively associated) with the common
purpose.
Accused no 4 is the only appellant: appellant was heard
saying to his companions that they should not miss the 4am,
and he was also heard talking to some of the hiding clansmen,
he was seen carrying his shotgun but there is no proof of his
actual shooting.
The proof of active association is relatively weak and can only
be used for a conviction if the scope for active association is
wide (Nzo method)
Court analyses the two methods and comes to the conclusion
that the Nzo method is not very fair, it allows an accused to
have the causal conduct imputed upon him when he has done
very little to actively associate himself with the common
purpose
It is decided that each accused should be measured by his
own conduct of active association, as stated in the
Safatsa/Mgedezi method.
Mgedezi sets out 5 criteria on which the accused must be
measured: presence at the scene, aware of the attack,
intention to commit to common cause, have performed an act
of association, and have fault.
The appellant in this case cannot be proven to have intent to
commit the common cause and there is no evidence proving
ACCOMPLICE LIABILITY
Hard Livings gang were on train and had not plan do anything
but the gang attack and kill another passenger on train
1st accused: kill the victim with a knife
2nd accused: grabbed victim around the neck and dragged him
across coach
3rd accused: stabbed the victim with bottle neck
4th accused: stood and watched
Legal question
Ratio
Judgement
INCOMPLETE
CRIME : ATTEMPT
R V SCHOOMBIE 1945
Legal facts
Schoombie was a potential arsonist
Poured petrol over and under the door of shop
He had flammable material and matches with him
As about to set shop alight, police appeared
Charged with attempted arson
Legal question
Did S go far enough for it to be seen as an uncompleted
attempt?
At what stage does an accused go from the preparation stage
to the commencement of consummation stage?
Ratio
Court a quo
Found that he had gone far enough to the commencement of
consummation stage before he was interrupted
Appeal against conviction stating he was still in a stage of
preparation, no match had been lit, petrol had merely been
poured.
Appeal
Arson? Arson is setting a fire unlawfully the accused had not
done this thus he is not guilty of arson
Attempted arson? Schoombie argued that he was only
preparing and had not completed the attempt
Court had to determine whether there were grounds for
conviction based on legal evidence and whether accused had
passed stage of preparation
Courts have deliberately refused to lay down a ground for
determining the line between preparation and
commencement and as such it is a value judgment based on
the facts of the case
Inferred that accused mind was properly set up as fire dries
quickly and so he would had to have lit shop on fire almost
immediately and would have done so had the policeman not
showed up.
Fact that he had made up his mind to carry out his evil
intention was a ground for conviction
Decision
ATTEMPT