S v Nowaseb

Facts: The accused, a 27-year-old man, pleaded guilty to two of the four crimes
brought against him and not guilty to the other two. Although the state accepted the
guilty plea on count 4, which was for escaping from lawful custody, it declined the
guilty plea on point 1, which was for murder. The accused is charged with murder in
count 1 because, between October 18 and 19, 2018, in Gobabis, he unlawfully and
wilfully killed August Geinamseb, a 10-month-old boy (hence 'the deceased'). It is
widespread knowledge that the accused is the deceased's biological father.

In count 2, the accused is charged with assault with intent to do grievous bodily
harm, in accordance with the provisions of the Combating Domestic Violence Act 4
of 2003, in that the accused unlawfully assaulted Lusia Erna Geinamseb (Lusia) by
hitting her with a stone on her hand and/or throwing a stone at her with the intent to
cause the said Lusia grievous bodily harm. In count 3, the accused is charged with
common assault for unlawfully and willfully assaulting Lucia by slapping her in the
face with his hand, causing her to fall down and suffer certain wounds, injuries, or
pains. The charge in count 4 is escape from lawful custody, which means that on or
about August 29, 2019, at or near Gobabis in the district of Gobabis, the accused
unlawfully and intentionally escaped from lawful custody after being arrested and
detained by police at the Gobabis Police station holding cells on a murder charge.

Issues: Whether the accused unlawfully and intentionally killed August Geinamseb,
a 10-month old boy (hereinafter ‘the deceased’). It is common cause that the
accused is the biological father to the deceased.

Application to facts and issues: In a statement prepared by his counsel in terms

of s 112(2) of the Criminal Procedure Act 51 of 1977 the accused admitted guilt on
counts 1 and 4 and amplified the pleas of guilty with an accompanying explanation.
However, he did not admit to intentionally killing the baby. At par 5.17 he further
stated:

‘Even though I did not have the intention to kill the deceased I foresaw that by
throwing the deceased’s on the ground I could cause his death and as such I am
guilty for having caused the deceased’s death dolus eventualis

The accused was afraid Paul would hit him with the panga. He dumped the
deceased on the ground and fled as he realized they were approaching close. He
claimed to have just dropped the infant after holding him in the cradle posture at
chest height. He denied ever taking the boy by the legs and lifting him above his
shoulders to hit the ground. He further denied having intended to murder the
youngster. He found out about the boy's passing the next morning and waited for the
cops to come get him.

Conclusion: Regarding the accused's alleged murderous intent, it was argued that
when he dropped the child, he didn't do so intentionally but rather negligently or
irresponsibly. Since he never planned to harm his child, his guilt should be
determined based on the admissions provided in the section 112(2) declaration.
Although the evidence presented by the prosecution showed that the accused acted
with direct intent, it is clear from his plea explanation that he confessed acting with
intent, however in the form of dolus eventualis. In view of all the evidence offered, it
is safe to dismiss his viva voce testimony that he just dropped the deceased as
untrue beyond a reasonable doubt.

https://lawblogsa.files.wordpress.com/2013/10/crw2601-exam_qs-and-answers.pdf

S v Zinn

Facts: In this case, the appellant was accused at the Cape of Good Hope Provincial
Division with (1) 63 counts of fraud, (2) 291 counts of theft, and (3) a violation of
Section 135 (3) (a) of Act 24 of 1936, read with Section 185 of Act 46 of 1956.
He pleaded guilty to 14 counts of fraud, 221 counts of theft, and one offence under
Act 24 of 1936, and was found guilty on all counts. He was condemned to 15 years
in prison, and he is now appealing the sentence with the permission of the
distinguished JUDGE-PRESIDENT. The appellant's past history showed that from
1930 he had been treated for about six years for pulmonary tuberculosis. The
examination in 1966 B showed that the appellant had a condition called
bronchiectasis. This was due to the previous lung disease

Issues: Which sentencing policy would be appropriate

Application to facts and Issues: A severe having regard to the following factors: (i)
the age of the appellant; (ii) the appellant's state of health; (iii) the appellant was
subjected to a crippling interest burden; (iv) that it was apparent from the balance
sheets that a vigilant shipper should have realised that the B company's borrowings
were excessive having regard to its turnover
Conclusion: The appellant's age and deliberate fraud over nearly eight years have
weakened his claim to a sentence for reform and a fresh start. His physical condition
makes imprisonment more disagreeable to him than a healthy man of his age.
However, his release from business problems may benefit his condition. Society's
interests demand that a man like the appellant be put away for a long time,
protecting society against a man with no conscience, punishing crimes committed
over an extended period, and warning businessmen to avoid abuse of confidence in
a civilized state. Therefore, his sentence was reduced to 12 years.

S v Kavin

Facts: The accused is charged with four counts of murder and attempted murder.
On June 7, 1977, the accused wrongfully and intentionally killed Denise Kavin, his
daughter Adele Dawn, his son Lance J Kavin, and attempted to kill his remaining
child Debbie Kavin.

Issues: Whether the accused falls within the ambit of s 78 (1) (b) of the Act and
that we are not compelled to accept any psychiatric opinion as sufficient proof that h
e did so fall whin the ambit of this section.

Application to facts and Issues: s 78 (1) (b) would appear to include behaviour
following upon a gradual personality disintegration by reason whereof a person may
suffer from a mental illness which makes him incapable of acting in accordance with
an appreciation of the wrongfulness of his act. In cases where psychiatric evidence
indicates a gradual disintegration of the accused's personality, rather than an
irresistible impulse, the court is more reliant on the evidence regarding such gradual
disintegration. This was evident when assessor Lessing questioned Prof Bodemer,
who acknowledged that other evidence and surrounding circumstances excluded
any finding of an irresistible impulse. The final combined report concluded that the
accused fell within the ambit of s.78 (1) (b) of the Act.

Prior to the adoption of Section 78 (1) (b), a defense of this sort could only be
properly asserted by the accused establishing, on the balance of probabilities, that
he acted as he did due to an overwhelming impulse. There can be no question that
the accused could not possibly succeed in this case on the basis of an irresistible
drive; it is abundantly obvious from all of the evidence that the accused had to walk
from bedroom to bedroom to carry out his evil plans. It was a slow and deliberate
course of conduct. In the circumstances the accused cannot be said to have suffered
from an irresistible impulse.
Conclusion: Prof Bodemer is satisfied that the accused was unable to act in
accordance with what he knew to be right at the time of the commission of the acts.
Prof Bodemer bases his conclusions on a reactive depression being present in the
mind of the accused. This reactive depression resulted in a state of neurosis. This,
according to Prof Bodemer, was the mental illness or the underlying mental illness
from which the accused suffered at the time of the commission of the offences and
which brought him within the ambit of s 78 (1) (b) of the Act.
The court finds that the accused, due to mental illness, was not criminally
responsible for the indictment's offenses. As a result, the accused is found not guilty
on all counts. The court orders detention in a mental hospital or prison until the State
President's decision.

Last question in exam 3.2

In order to understand not only the plea tendered on behalf of and by the accused,
but also what exh A means, it is necessary to refer to some of those sections of Act
51 of 1977 which have replaced ss 27, 28 and 29 of Act 38 of 1916. The sections
relevant to this enquiry are ss 78 and 79. I shall read the relevant portions of s 78.
They are the following:
(2) If it is alleged at criminal proceedings that the accused is by reason of mental
illness or mental defect not criminally responsible for the offence charged, or if it
appears to the court at criminal proceedings that the accused might for such a
reason not be so responsible, the court shall direct that the matter be enquired into
and be reported on in accordance with the provisions of s 79.

(7) If the court finds that the accused at the time of the commission of the act in
question was criminally responsible for the act but that his capacity to appreciate the
wrongfulness of the act or to act in accordance with an appreciation of the
wrongfulness of the act was diminished by reason of mental illness or mental defect,
the court may take the fact of such diminished responsibility into account when
sentencing the accused.

Exam Questions Possible

Question 1
(a) The retributive theory is the only theory of punishment which insists on there
being
a direct proportion between the extent of the harm or damage caused and the
extent of the punishment. true
(b) In the decision of Zinn the court held that, in determining an appropriate
sentence,
the court must take into account only the interests of the society. false
(c) The efficacy of the theory of general deterrence depends only upon the severity
of
the punishment that might be imposed, and not upon the degree of probability that
the criminal will be caught and convicted. false

Answer: option (1), only statement (a) is correct.

Question 2
(a) The mere fact that an act corresponds to the definitional elements of an offence
means that the act is unlawful. false
(b) A person may act in private defence in order to protect a third person even if
there
is no family or protective relationship between himself and the third person? true
(c) The judgement in Goliath is authority for the statement that one may kill an
innocent
person in a case of a relative compulsion. true
(1) Only statement (a) is correct.
(2) Only statement (b) is correct.
(3) Only statements (a) and (c) are correct.
(4) Only statements (b) and (c) are correct.
(5) All of these statements are correct

Answer: option (4), since only statements (b) and (c) are correct.

Question 3
(a) Putative private defence is not actual private defence and can therefore not
exclude
X’s culpability. false
(b) For X to succeed with a defence of private defence, his defensive act must have
been directed at an attack that has already been completed. false
(c) The test to determine necessity is an objective test. true
(1) Only statement (a) is correct.
(2) Only statement (c) is correct.
(3) Only statement (b) is correct.
(4) Only statements (a) and (c) are correct.
(5) All these statements are correct.

Answer: option (2), since only statement (c) is correct.

Question 4
(a) In Chretien 1981 (1) SA 1097 (A) the court rejected the “specific intent theory”
with
regard to intoxication. true
(b) If X is charged with murder and the court finds that he was so intoxicated that he
lacked the intention at the time of the commission of the crime, he canot be
convicted of any crime. false
(c) One of the requirements for a conviction of a contravention of section 1 of Act 1
of
1988 is that X should have lacked criminal capacity at the time of the commission of
the act. true
(1) Only statement (b) is correct.
(2) Only statement (c) is correct.
(3) Only statement (a) is correct.
(4) All these statements are correct.
(5) Only statements (a) and (c) are correct

Answer: option (5), since only statements (a) and (c) are correct.
Question 5
(a) The cognitive component of criminal capacity is present if X has the ability to
appreciate the wrongfulness of his act. true
(b) In Kavin 1978 (2) SA 731 (W) the defence of mental illness was raised
successfully. true
(c) The test for mental illness comprises both a pathological and biological test. false
(1) Only statement (a) is correct.
(2) Only statement (c) is correct.
(3) Only statements (a) and (b) are correct.
(4) All these statements are correct.
(5) Only statements (a) and (c) is correct

Answer: option (3), since only statements (a) and (b) are correct.

Question 6
(a) The ius certum principle, which forms part of the principle of legality, implies that
nobody ought to be convicted of a crime, unless the kind of act performed by him
had been recognised by the law as a crime already at the time of its commission.
False that is ius acceptum, ius certum states that crime must not be defined in a
ambigious manner
(b) Before one can assume that a provision in a statute had created a crime, it must
be clear that the provision contains a criminal norm. true
(c) The ius strictum principle implies that a court is not authorised to extend a crime’s
field of application by analogy to the detriment of the accused. true
(1) Only statement (a) is correct.
(2) Only statement (c) is correct.
(3) Only statements (a) and (b) are correct.
(4) Only statements (b) and (c) are correct.
(5) All the statements are correct.

Answer: option (4), since only statements (b) and (c) are correct.
Question 7
(a) Evidence of provocation may sometimes serve to confirm the existence of
intention
to commit the crime with which X is charged. true
(b) If X is charged with assualt with intent to do grievous bodily harm and it appears
from the evidence that he was provoked, the provocation may have the effect that X
will not be found guilty of assault with intent to do grievous bodily harm but only of
common assault. true
(c) In the decision of Ngubane the court held that it is wrong to assume that proof
that
X acted intentionally excludes the possibility of a finding that he acted negligently.
true
(1) Only statements (a) and (b) are correct.
(2) Only statements (a) and (c) are correct.
(3) Only statements (b) and (c) are correct.
(4) Only statement (b) is correct.
(5) All these statements are correct.

Answer: option (5), since all the statements are correct.

Question 1
(a) Conduct can only be voluntary if it is willed. false
(b) The general criterion to determine whether there is a legal duty on someone to
act
positively is the legal convictions of the community. true
(c) The term “conduct” as used in criminal law does not include a voluntary human
omission. false
(1) Only statement (a) is correct.
(2) Only statement (b) is correct.
(3) Only statements (a) and (b) are correct.
(4) None of the statements is correct.
(5) Only statement (c) is correct.

Answer: option (2), since only statement (b) is correct

Question 2
(a) In order to qualify as a novus actus interveniens, an occurrence must be
unexpected, abnormal, or unusual. true
(b) A mistake need not be reasonable or material to exclude intention. false
(c) In the case of formally defined crimes, the definitional elements proscribe a
certain
type of conduct which causes a specific condition. false
(1) Only statement (a) is correct.
(2) Only statement (b) is correct.
(3) Only statements (a) and (b) are correct.
(4) Only statement (c) is correct.
(5) None of these statements is correct.

Answer: option (1), since only statement (a) is correct.

Question 3
(a) Antecedent liability rules out the defence of automatism. true
(b) The mere fact that an act corresponds to the definitional elements of a crime
means
that the act is unlawful. false
(c) One of the requirements for the existence of direct intention (dolus directus) is
that X must have an evil motive to commit the relevant act or to cause the relevant
result. false
(1) Only statement (c) is correct.
(2) Only statements (b) and (c) are correct.
(3) Only statements (a) and (c) are correct.
(4) Only statement (b) is correct.
(5) Only statement (a) is correct.
Answer: option (5), since only statement (a) is correct

Question 5
(a) In Chretien 1981 (1) SA 1097 (A) the court rejected the “specific intent theory”
with
regard to intoxication. true
(b) If X encourages the severely depressed Y to commit suicide by giving her a
loaded
pistol to shoot and kill herself, he can never be convicted of Y’s murder if she
voluntarily takes the pistol and kills herself. false
(c) The “triad in Zinn” refers to the crime, the criminal, and the punishment. false
(1) Only statements (a) and (b) are correct.
(2) Only statement (c) is correct.
(3) Only statement (a) is correct.
(4) Only statement (b) is correct.
(5) Only statements (a) and (c) are correct.

Answer: option (3), since only statement (a) is correct

Question 6
(a) Necessity always stems from an unlawful human act. false
(b) The cognitive component of criminal capacity is present if X has the ability to
conduct himself in accordance with his appreciation of the wrongfulness of his
conduct. false
(c) Vicarious liability applies only to statutory crimes. true
(1) Only statement (a) is correct.
(2) Only statement (b) is correct.
(3) Only statements (a) and (c) are correct.
(4) None of these statements is correct.
(5) Only statement (c) is correct.
Answer: option (5), since only statement (c) is correct.

Question 7
(a) An act in obedience to an unlawful order can only be justified if the order is not
manifestly unlawful. true
(b) The reasonable person is a figment of the imagination of the bonus paterfamilias.
false
(c) In materially defined crimes requiring negligence it must be proved that X was
negligent in the causing of a result. true
(1) Only statement (a) is correct.
(2) Only statements (a) and (b) are correct.
(3) All the statements are correct.
(4) Only statements (a) and (c) are correct.
(5) Only statements (b) and (c) are correct.

Answer: option (4), since only statements (a) and (c) are correct.

Question 8
(a) Putative private defence is a defence excluding culpability and not a defence
excluding the element of unlawfulness. true
(b) In Mtshiza 1970 (3) SA 747 (A) the court approved the transferred intent
approach
in respect of cases involving aberratio ictus. false
(c) The test for dolus eventualis is whether a person ought to have foreseen the
possibility of a consequence ensuing. false
(1) Only statements (a) and (b) are correct.
(2) None of these statements is correct.
(3) Only statement (a) is correct.
(4) Only statement (b) is correct.
(5) Only statements (a) and (c) are correct.

Answer: option (3), since only statement (a) is correct.

Question 9
(a) The words “mental illness” in section 78(1) of the Criminal Procedure Act 51 of
1977 refer to a pathological disturbance of the mental faculties. true
(b) In Eadie 2002 (1) SACR 663 (SCA) the court held that the defence of non-
pathological criminal incapacity resulting from provocation or emotional stress
amounts to the defence of sane automatism. true
(c) Children younger than 14 years are irrebuttably presumed to lack criminal
capacity. False
(1) Only statement (a) is correct.
(2) Only statement (b) is correct.
(3) Only statements (a) and (b) are correct.
(4) Only statements (a) and (c) are correct.
(5) Only statement (c) is correct.

Answer: option (3), since only statements (a) and (b) are correct.

Question 10
(a) In terms of the ius strictum principle crimes should be defined clearly and not
vaguely. False
(b) Where doubt exists concerning the interpretation of a widely formulated criminal
provision in an act, the provision should be interpreted in favour of the accused. true
(c) The preventive theory overlaps the deterrent and the reformative theories since
all
these theories aim to prevent the commission of crimes. true
(1) Only statement (a) is correct.
(2) Only statement (b) is correct.
(3) Only statements (a) and (c) are correct.
(4) Only statements (b) and (c) are correct.
(5) Only statement (c) is correct. [30]

Answer: option (4), since statements (b) and (c) are correct.
(b) X, a sixty-three-year-old public prosecutor who suffers from diabetes, is charged
with the crime of corruption. The state’s evidence reveals that X received R30 000
from Y in exchange for destroying a police docket which implicated Y in several
fraudulent activities. X is convicted of corruption. X has no criminal record. The
state prosecutor argues that the appropriate sentence for X’s crime is imprisonment
for a period of five years because persons in public office should be deterred from
abusing their powers. X’s legal advisor disagrees with these submissions. She
argues that imprisonment for a period of five years is too harsh a sentence,
considering the age, health and clean record of the accused. In her view, a
sentence of imprisonment would place too much emphasis on general deterrence,
and disregards the principle of proportionality embodied in the theory of retribution.
With reference to the decision in Zinn 1969 (2) SA 537 (A), discuss the merits of
these arguments. In your answer you must explain the difference between the
absolute and relative theories of punishment. (7)

Unit 2 - Principle of Legality

Do you think the following statutory provision complies with the principle of legality?
“Any person who commits an act that offends against the good morals of the nation,
shall be punished.” Discuss. (8)

Unit 3 - The Act X, a 62-year-old man, works in a mine. His job is to operate the
cocopans. These cocopans are used to transport hard rocks and gravel from the
bottom of the mine to the surface. One day, while working, he suddenly experiences
a black-out. In his state of unconsciousness, he falls on the lever which controls the
movement of the cocopans. A cocopan crashes into another worker, Y. Y is killed
instantly. X is charged with culpable homicide. The evidence before the court is as
follows: X has been suffering from diabetes for the past year. His doctor had warned
him that he may lose consciousness at any time if he fails to take his medication as
instructed. On that particular day, X had failed to take his medication. The court finds
that X had insufficient grounds for assuming that he would not suffer a blackout on
that particular day. X's legal representative argues that X cannot be convicted of
culpable homicide because, at the time of the commission of the offence, he was not
performing a voluntary act.
In other words, the defence raised is that of automatism. You are the state
prosecutor. What would your response be to this argument?

(a) Discuss the defence of automatism. Your answer must include (i) examples from
the case law of cases in which this defence succeeded; (ii) an explanation of the
points of difference between so-called “sane” and “insane” automatism; (iii) an
explanation of what is meant by “antecedent liability”. (8)
Answer (a) AUTOMATISM - A person acts in a state of automatism if he acts in a
mechanical fashion. Examples of such instances are reflex movements such as
heart palpitations or a sneezing fit and A person who acts in a state of automatism
does not act voluntarily. (i) Dlamini's case - X killed Y while under influence of the
nightmare. Mkize's case - X killed Y while he was having an epileptic fit. Du Plessis's
case - an experienced driver had a mental “blackout”
(ii) sane automatism insane automatism onus on state to prove the act was voluntary
onus is on X to prove that he suffered from mental illness if X's defence is
successful, he leaves the if defence is successful, X is dealt with court a free man in
terms of section 78 (6) of the Criminal Procedure Act 51 of 1977
(iii) Antecedent liability: X knows that he suffers from epileptic fits or that, because of
some illness or infirmity he may suffer a" black out", but nevertheless proceeds to
drive a motor-car, hoping that these conditions will not occur while he is sitting
behind the steering wheel, but they nevertheless do occur. He can then not rely on
the defence of automatism. He can be held liable for certain crimes requiring
negligence, for example culpable homicide. His voluntary act is then performed when
he proceeds to drive the car while still conscious.
In Victor 1943 TPD 77, for example, X was convicted of negligent driving despite the
fact that the accident he had caused had been due to an epileptic fit: evidence
revealed that he had already been suffering epileptic fits for the previous thirteen
years, and that he had had insufficient reason to believe that he would not again
suffer such a fit on that particular day.

Question 2
X loses control of her motor vehicle while having a coughing fit and kills a pedestrian.
She is charged with murder alternatively culpable homicide. You are her lawyer.
What defence will you advance on her behalf at the trial? Discuss. (5)
X can rely on the defence of sane automatism, which is a complete defence.
Sane automatism means that a person did not perform a voluntary act. In Trickett
Principles dealt with: 1. Automatism 2. Using of automatism as defence 3. Onus of
proof lies on accused to prove said automatism Outline: Appellant swerved her car
into an oncoming vehicle. She was charged and convicted of negligent driving. She
appealed the conviction saying that she must have temporarily blacked out, but
provided no proof of this. Outcome: Appellant’s appeal was dismissed: onus of proof
was not discharged properly. Although the onus of proving that the act was voluntary
is on the state, the defence I would advance on her behalf, by calling medical or
other expert evidence to create a doubt whether the act was voluntary

Unit 4 Causation
(a) Y feels depressed and threatens to commit suicide. X, who harbours a grudge
against Y, hands her a loaded firearm, stating she may shoot and kill herself if she
so wishes. Y takes the firearm and shoots and kills herself.

In the Grotjohn case the Appellate Division held that the mere fact that the last act
was the victim's own voluntary act did not mean that there was no causal relationship
between X's act and Y's death. X's act (in the Grotjohn case) was a conditio sine qua
non of Y's death. Y's last act (her suicide) was not a novus actus interveniens ^ an
unexpected or unusual event in the circumstances. The court ruled that if X's act was
the factual cause of Y's death, an unusual event which took place after X's act but
before Y's death cannot break the causal link if X had previously planned or foreseen
the unusual turn of events

(b) X, who is very poor, reads a newspaper report about a man who had been
caught by a crocodile in a river in Botswana. She persuades her uncle Y, who is very
rich and whose heir she is, to go on a safari to Botswana. She also encourages her
uncle to take a boat trip on the river, hoping that he will be killed by a crocodile. Y
undertakes the safari. He also goes out on a canoe on the river. The canoe is,
unexpectedly, overturned by a hippo. Y falls into the water. A crocodile catches and
kills him
X's act can be regarded as a conditio sine qua non of Y's death, because if X had
not persuaded Y to undertake the safari, Y would not have undertaken the trip.
Therefore, there was factual causation. However, there was no legal causation. An
application of the theory of adequate causation leads to the same conclusion: being
killed by a crocodile is not an occurrence which, according to general human
experience, is to be expected in the normal course of events during a safari. Merely
to hope (as X did) that the disastrous event would take place cannot be equated with
the situation where X planned or foresaw the occurrence of the event before it took
place. According to the criterion of policy considerations applied in the Mokgethi
decision, one may also argue that it would not be reasonable and fair to regard X's
act as the legal cause of Y's death.

(c) X tries to stab Y, intending to murder her. Y ducks and receives only a minor cut
on the arm. However, infection sets in and Y visits a doctor. The doctor gives her an
injection and tells her to come back the following week for two more injections. The
doctor warns Y that she may die if she fails to come back for the other two injections.
Y fails to go back to the doctor, reasoning that her body is strong enough to fight the
infection. She dies as a result of the infection.
It is clear that X's act is the factual cause of Y's death: if X had not stabbed Y, she
would never have contracted the infection. In terms of the Mokgethi decision one
may argue, however, that X's act was not the legal cause of Y's death. Y's failure to
go back to the doctor was unreasonable and created such an unnecessary life-
threatening situation that, legally speaking, there is not a sufficiently close link
between the original stab-wound inflicted by X and the death of Y.

(d) X shoots Y in the chest, intending to murder her. The bullet wound is of such a
serious nature that Y will die if she does not receive medical treatment. Y is admitted
to hospital, but because the nursing staff is on a general strike she receives
inadequate medical treatment. The wound be- comes infected. Although she is
eventually treated for the infection, she dies after a period of two weeks
It is clear that X's act is the factual cause of Y's death (conditio sine qua non).
According to the court in Tembani, X's act can also be seen to be the legal cause of
Y's death. X deliberately inflicted an intrinsically dangerous wound to Y, which
without medical intervention would probably cause Y to die. It is irrelevant whether it
would have been easy to treat the wound, and even whether the medical treatment
given later was substandard or negligent. X would still be liable for Y's death. The
only exception would be if at the time of the negligent treatment Y had recovered to
such an extent that the original injury no longer posed a danger to her life.

Unlawfulness questions

Upon experiencing pain in her womb, Y goes to a gynaecologist for a check-up. Z, her male
gynaecologist, decides that Y should undergo an operation. Y agrees to this procedure. She is taken
to the operating room and is administered a strong sedative as a preliminary procedure before
receiving anaesthetics. Z leaves the operating room to address another emergency. Moments later,
X, a male nurse, enters the operating room. He inserts his finger into Y’s vagina with the intention to
derive sexual gratification. Y, believing that this conduct amounts merely to a preparatory medical
procedure, does not object. X is caught by another nurse and is later dismissed from his
employment. A horrified Y lays a rape charge against X. In his defence, X argues that there was
consent because Y did not object. Consider only the merits of this defence. (It is not in dispute that
the act performed by X amounts to an “act of sexual penetration” as required by the new statutory
crime of rape). (6)

Criminal Capacity questions

Question 9 X and Z are both taxi drivers. They work in the same areas, and use the same route. X
knows that Z's taxi is always filled to capacity. X feels that he has the sole right to that particular
route, and decides to shoot and kill Z. One day, having stopped next to each other at a red traffic
light, X is overcome with anger. The windows of Z’s taxi are tinted, so that it is impossible to see
whether there are any passengers inside. X fires a shot in the direction of the driver's seat of Z's taxi,
hoping to kill Z. The bullet misses Z but hits Y, who is sitting next to Z. Y is very badly wounded, but
miraculously survives. Discuss X's criminal liability.

Z works for a security company. His job is to patrol the streets of a certain suburb and to protect the
people who live in the suburb. One evening he receives a message on his radio that he must
immediately go to a house which has been broken into. He goes to the house and presses the bell at
the gate but receives no response. He then climbs over the wall and, as he approaches the house,
sees a figure, Y, coming out of the house. Y runs in the direction of the back of the house. Z pursues
Y, and tells him to stop. Y disregards his (Z’s) request and jumps over a fence into the neighbour’s
property. Z follows Y into the neighbour’s property.

The neighbour, X, who has been awoken by the noise, sees Z (the security guard) running across his
lawn with his revolver in his hand. He (X) thinks that Z is a burglar and fears that he and his family
may be attacked. X approaches Z from behind and hits him (Z) with a cricket bat over the head. X is
charged with assault with intent to do grievous bodily harm in respect of Z (the security guard).
Discuss whether X’s mistake affords him any defence. (8)

Yes, X’s mistake affords him a defence.

Because X was under the incorrect impression that he was acting in private defence, he lacked
intention and cannot be convicted of assault.

Intention consists of two elements: knowledge and will. The knowledge requirement means that X’s
intention must relate to all the elements of the offence except, of course, the requirement of
culpability.
Criminal Liability Requirements

His intention must relate to (1) the act; (2) the circumstances set out in the definitional elements;
and (3) the unlawfulness of the conduct.

In the set of facts, X was under the impression that his conduct was covered by a ground of
justification, namely private defence. He therefore made a mistake regarding the unlawfulness of
the conduct. He thought he was acting in private defence but, judged objectively, his conduct was in
fact unlawful.

He therefore cannot rely on private defence but may rely on the defence that he lacked culpability.
X’s defence is known as “putative private defence”.

In De Oliviera Principles dealt with: 3. Mistake relating to a ground of justification 4. Putative private
defence Outline: X lived in an area where many housebreaks occurred. He thought someone was
trying to break into his house, when in fact they were just trying to gain the maid’s attention. He
fired 6 shots directly at the men without firing a warning shot, killing one of them. He was convicted
of murder and attempted murder and here appealed on the basis that the state had not proved
beyond a reasonable doubt that he had subjectively had the necessary intent to commit the crimes.

Outcome: The appellant was held to have had the necessary intention to kill in the form of dolus
eventualis and his appeal failed. It should be noted that in a case of putative private defence, it is not
unlawfulness that is at issue but culpability.