PBL 420 Notes PDF

Incomplete Crimes Introduction ‘Incomplete crimes’ are also referred to as ‘inchoate crimes’ → these are independent crimes that involve conspiracy and incitement but are NOT complete Incomplete crimes are anticipatory in nature Incitement → then conspiracy → then attempt...

Incomplete Crimes Introduction ‘Incomplete crimes’ are also referred to as ‘inchoate crimes’ → these are independent crimes that involve conspiracy and incitement but are NOT complete Incomplete crimes are anticipatory in nature Incitement → then conspiracy → then attempt o This is the usual sequence ^ o However, it is possible to also have attempted incitement and attempted conspiracy o These are 3 types of incomplete offences Incomplete crimes are formally defined crimes where we punish the act (not the consequence) Must occur with reference to a specific crime. An attempt to do something cannot happen in the abstract. Instead, the attempt must occur with reference to a specific crime (e.g. the ‘attempt’ must be attempted murder, attempted housebreaking etc Incomplete crimes stem from the retributive theory of punishment (e.g. X had the intention to complete the crime so X should pay for his act even though it is incomplete) o They can only be retribution in respect of harm done, and in these cases no harm has yet been done → The reason for punishing this anticipatory conduct must be found rather in the relative theories of punishment, and more specially in preventative and reformative theories o the police are better able to uphold the law and protect the community if they may apprehend criminals who have as yet committed only acts which normally proceed the Commission of a crime. o The maintenance of law and order would suffer seriously if the police were powerless to intervene when they saw people preparing to commit crimes, but could not take action against them only once the harm had been done The punishment X will receive for an attempted crime will either be the same or a less harsh conviction and sentence as X would have gotten if he had indeed committed the crime o the reason for the application of the reformative theory in this connection is that people who commit these anticipatory crimes are as much of A danger to society as those who have completed the crime, and therefore as much in need of reformative treatment ‘Attempt’ can be divided into 3 forms/categories → complete + incomplete/interrupted + impossible Attempt The general rules of our law relating to the requirements for punishing an attempt to commit a crime may be summarised as follows: 1. a person is guilty of attempting to commit a crime if, intending to commit that crime, she unlawfully engages in conduct that is not merely preparatory but has reached at least the commencement of the execution of that intended crime 2. a person is guilty of attempting to commit a crime even though:  a) the Commission of the crime is impossible, if it would have been impossible in the factual circumstances which she believes exist or will exist in the relevant time b) she voluntarily withdraws from its Commission after her conduct has reached the commencement of the execution of the intended crime 1) COMPLETED ATTEMPT: o Arises when X does everything from his side to commit the crime but, for some reason (due to lack of skill, lack of foreseeability, or an unforeseen external event), the crime is not completed ▪ Eg) X wants to shoot Y and thinks there are two bullets → aims, fires and there are no bullets in the gun =completed ▪ Eg) X wants to poison Y with Ratex pours it in his drink but its juice in a Ratex bottle o Laurence Case: ▪ At this point in time, there was the ‘Suppression of Communism Act’ which prohibited the publication of any interviews etc ▪ Mr L conducted an interview with a certain individual and was forthcoming from the interview he was not allowed to publish (interviewee = communist) but he wrote the article, published it, but it was intercepted so he was charged with attempted contravention of the Act ▪ Court found him guilty of attempt to contravene the section = Did everything from his side o Mshumpa Case: ▪ The accused shot a pregnant woman in her stomach in attempt to kill her unborn baby. The accused was charged with attempted murder iro the mom – but not the unborn foetus. ▪ This case is another example of a completed attempt. 2) INCOMPLETED ATTEMPT (2 FORMS) → Objective o Mere thoughts are not punishable o The person must perform some act ito he puts his thoughts into motion o Incomplete attempts are not offences in the abstract. One cannot be charged with attempt only. The attempt must be associated with a specific crime o Our courts have introduced an objective criterion for differentiating between punishable and non punishable attempts in these types of cases ▪ If what X did was merely a preparation for the crime, there is no attempt. If, however, her ex were more than actor preparation and were in fact acts of consummation, she is guilty of attempt o Important question we must ask: was X’s act merely an act of preparation or does it amount to execution of the crime? ▪ e.g.) X has a gun in his pocket. He walks on campus and wants to shoot someone. Here X is acting in preparation of a crime. However, when X takes out his gun and points it to someone, here X crosses the line where the act of preparation ends and where act of execution starts. X is then interrupted right before he shoots → thus making it an incomplete/interrupted crime ▪ Here the question arises as to whether this is an act of preparation or execution? o Interrupted attempt (objective) ▪ Eg) X wants to shoot Y aims but gets stopped by police ▪ One must always differentiate between acts or preparation and act of consummation → acts of preparation = not guilty of attempt ▪ Involuntary withdrawal situations = X pulls out firearm and thinks “no I cant do this” Schoombie case  S wanted to burn down a retail shop and brought with him a can of petrol and some matches. S poured the petrol around the shop. Right before he was about to light the match, the police arrived on the scene. S was charged with attempted arson.  The court had to assess whether S’s act (of pouring petrol and attempting to light a match) was merely an act of preparation or if he had commenced execution of the crime  The court distinguished between a completed attempt and an incomplete attempt  Attempt is established once X commits an act with the intent of completing the crime → beyond preparation  Found guilty = court said he has passed the stage of preparation moving towards execution/consummation  S was found guilty bc his acts weren’t merely in preparation. He had already poured out the petrol around the building and was about to light the match. So his acts crossed the boundary and equated to an act in execution. He was thus found guilty of attempted arson Nango Case  Facts: a gang launched an attack on a group of policemen and N was part of this gang. At some point N had an axe in his hand and he was about to attack one policeman lying on the ground. At this moment, a police fired a shot at N and interrupted him in his attempt to use the axe. N was then charged with attempted murder and was found guilty.  His defence was that he voluntarily withdrew  If he had not been interrupted he would have definitely injured the police officer  The court held that his act had already commenced in execution of the crime – it was not merely preparation of the crime  He was then found guilty of attempted murder o Voluntary Withdrawal ▪ This is where X of her own accord abandons her criminal plan of action, as where, after putting poison into Y’s porridge but before giving it to Y, she has second thoughts and decides to throw the porridge away ▪ If the withdrawal takes place after the home has already been done the attempt ought to be punishable,  ▪ it has been argued that the position ought to be different if X withdraws before having already passed the point where the consummation has commenced ▪ Eg) X Wanting to commit house breaking and theft, has already inserted the key into the door of Y’s house. → At that stage she reconsiders her conduct, decide voluntarily to desist from her plan, withdraws the key and walks away. → It has been argued that attempts ought not to be punishable ▪ And reformative theory, it is argued that there is no need to be reformed because X has already reformed herself 3) Impossible Attempt (subjective) o Eg) X walks past Y whis is lying on the ground and X stood over Y saying “this is it for you” and shoots but Y has been dead for 2 hours and died of a heart attack → objectively you cant murder a corpse o Can be impossible because of the means and object used o Test in this regard = subjective o 2 Exceptions (1) X attempts to commit a crime that no longer exists eg) adultery/seduction (2) If a statutory provision specifically excludes attempt ▪ Davies Case: Facts: during those years the Prohibition of Abortion Act was still in place, and D attempted to abort a foetus. But the foetus was already dead when he attempted the abortion. The question arose to whether he is guilty of attempted abortion even though the foetus was dead The court found him guilty of attempted abortion. Why? bc with impossible attempt we apply a subjective test where we go and look at what went on in X’s state of mind at the time of the crime. In D’s mind the foetus was still alive and he wanted to abort it On the other hand, with complete and interrupted attempt we apply an objective test Court said impossibility can relate to 3 things: ▪ Impossibility of the object ▪ Impossibility wrt the means used ▪ Impossibility wrt subject (in the past women couldn’t commit rape) Tests to be applied: o Objective test → applied to complete and incomplete attempts. We look at the situation from the outside o Subjective test → applied to impossible attempts. We go into X’s mind to see if he is guilty of attempt o Du Plessis case: ▪ Accused published a book containing state secrets but the statement was actually false ▪ Should be guilty of attempt ▪ Court held 2 principles: Must be intention on the part of the offender to complete the crime  Must be clear that X embarked on a series of act that had progressed beyond merely acts of preparation and is interrupted would have led to the completion of the crime Special Cases o Robinson Case ▪ D had experienced financial difficulties and had asked Accused no. 3 to kill him so his wife could get the insurance policy ▪ A3 said he cant, A2 = wife said she cant and go A1 to do it → were all charged ▪ Question = should the wife be charged with attempted murder? ▪ She was found guilty of attempted murder = put the crime into motion o Ntanzi Case: ▪ A on the day in question was on the bus and C was also on the bus ▪ C was smoking ▪ C approached Ntanzi and pushed his burning cigarette on Ntanzi’s forehead ▪ N walked away C taunted him ▪ N pulled out his firearm and fired a shot that didn’t hit C ▪ Charged with attempted murder ▪ Due to lack of intention = found not guilty cant be held guilty of attempted negligence o Phiri Case: ▪ HIV+ scenario ▪ X knows they have HIV and has unprotected sex = cant they be charged with attempted murder ▪ A was HIV+ and he was an HIV councillor and had unprotected sex without disclosing ▪ A argued it should be assault with intent to cause GBH ▪ Dolus Eventualis = foresaw possibility of transmitting the STI ▪ Found guilty of attempted murder o Nyalungu Case: ▪ the accused was HIV positive. He raped the complainant. He was charged with attempted murder and found guilty based on intention in form of dolus eventualis Incitement Sexual Offences Act + Cyber Crimes Act both have sections dealing with incitement Sec 18(2) of Riotous Assemblies Act: any person who incites, instigates, or procures another person to commit any crime, whether it is a common law offence or a statutory offence, shall be guilty of an offence and liable on conviction of the punishment to which a person actually convicted of committing the crime would be liable We do not distinguish between successful and unsuccessful incitement bc incitement is a formally defined crime → We punish the act of incitement and not the consequence o X’s liability is not dependant on whether he actually managed to influence the person that they tried to incite or whether the person actually agreed to commit the crime  o Liability is NOT dependant on whether the crime was committed or not Instead, we focus solely on the mind of the inciter The act of inciting another person to commit a crime is punishable. Punishment based on ‘retributive theory’ → We punish the criminal for attempting his incomplete attempt to commit the crime o e.g.) X tells Y ‘let’s kill our criminal law lecturer’ → X can be punished for saying this A person can only be charged with incitement if the crime is NOT complete. This is why incitement is a type of incomplete offence Incitement can also be done through social media / WhatsApp etc Incitement can be committed explicitly (words or deeds) or impliedly/tacitly (conduct) → But there must at least be a description of the crime to be committed + the person/object in terms of which the crime is to be committed Incitement can ONLY be committed intentionally. Y cannot negligently incite X It is also possible to attempt to incite another person o e.g.) Where X attempts to incite a police trap o e.g.) Where X tries to incite a mentally ill person who lacks criminal capacity The act of incitement (a) Influencing another to commit a crime = the crux of the act of incitement is that X comes into contact with Y an influences or seeks to influence Y verbally or by conduct to commit a crime (b) ways in which incitement may be committed = incitement may be committed in many different ways. The act of incitement may be explicit or implied → words, an act and verbal incitement maybe in oral or written forms (c) conduct that does not qualify as incitement = X’s conduct does not qualify as incitement if X merely describes to Y the pros and cons all the proposed Commission of a crime by Y, ohh merely raises Y’s curiosity about the possibility of the Commission of a crime, or merely arouses greed on the part of Y (d) the concretisation requirement = X’s He addresses to Y should not be too vague or equivocal. Be sufficiently concrete or specific, so that Y will know what she is excited to do INCITER INCITEE Def = the one who reaches and seeks to The conduct and intention of the incitee influence the mind of another to the is NOT important commission of a crime immaterial whether there was persuasion TEST: emphasis on the conduct and /unwillingness; intention of the inciter may be a police trap who simply wants to Element of persuasion is not required trap inciter with no intention to commit The means used to incite the incitee are crime (Nkosiyana); immaterial if culpability is lacking /unaware that the Express or tacit act that he is incited to commit is a If the incitement does not come to the crime, then no incitement; but inciter knowledge of the incitee, then the inciter may be guilty as an indirect perpetrator can only be charged with attempt (Milne & Erleigh) (attempted incitement)  The inciter must consciously seek to influence the incitee to commit the crime (element of intention) Nkosiyana case → Definition o This case laid out the basic principles of incitement - Facts: there were 2 opposing political parties. The accused and co-accused were members of the 1 political party. The accused wished to kill the leader of the opposing party. He approached Mr Dunn and Mr Burger and tried to persuade them to kill the leader for a certain amount. The accused did not know that both Dunn and Burger were police officials. He was charged with incitement. o The accused argued that it cannot be incitement bc the incitee (the 2 policemen) could not be persuaded to commit the crime due to the fact that they were both police officials o The court rejected this argument ^ and defined an inciter as one who reaches and seeks to influence the mind of another to commit a crime. The ways in which this can be done are unlimited (by means of suggestion, proposal, request, gesture, or argument) → the list is not exhaustive o The means employed by the inciter are of secondary importance o The decisive/central question in each case is whether the inciter sought to influence or persuade the mind of another to commit a crime. o The conduct and intention of the inciter is important o NOT the incitee’s conduct and intention - We are focused solely on what went on in the inciter’s mind at the time of the crime Milne Just Take Note → Incitement/Participation o Directors of a company and they got an employee to do false inscriptions in a log book o Employee did not know this was wrong = not aware that he was incited o Milne and Erleigh were charged with incitement to commit fraud o Defence = incitee was not aware o Legal question: can incitement be committed by means of an answer to a question? o Court held: yes it can be, BUT in this case it was held that bc Mr P was unaware of the fact he was being incited, incitement was NOT committed o This case was criticised bc the incitee’s mind is irrelevant ➔ So we stand by the legal position in Nkosiyana Dreyer Case o A = police official o Die to the fact they experience a personnel shortage = appointed civilians o Asked another employee to sign claim forms o Employee asked “is this lawful” D said “yes” o In other words, X may commit incitement through his inciting statements that are made in response to questions first asked by Y o The chronological sequence of events is not relevant Dick Case o Conditional incitement o A experienced problems with his fiancée and they broke up o He then went to a witch doctor = gave him a love potion + poison  o If the potion didn’t work he was supposed to give her poison o A was charged with incitement to murder o Defence: only if the potion did not work would he have used the posion o Found guilty of incitement to commit murder Conspiracy Definition: Any person who conspires with another person to aid or procure the commission of an offence, whether it is a common law or statutory offence, shall be guilty of an offence or liable of conviction of the punishment to which a person actually convicted of the offence would be liable Requirements o Underlying = mere agreement to do constitutes a danger to society o Must be at least 2 participants + entering into agreement o Conspiracy can be Express/tacit (means of conduct) o Not a requirement that every participant must be aware of every participant o Not every party must be aware of the manner of the crime → they must just be aware of the existence of each other o X must intend to conspire + have intention to commit the crime o It is NOT a requirement that the conspirators agree on the exact and precise way in which the crime will be executed. The mere agreement between them to commit the crime is sufficient o There is no such thing as negligent conspiracy. Conspiracy can ONLY be committed intentionally. The intention requirement is 2 fold: ▪ must have the intention to conspire ▪ X must have the intention to commit a crime o Conspiracy is criminalised ito sec 18(2)(a) of the Riotous Assemblies Act o Usually conspiracy is only utilized as a charge against X if the crime he conspired about is not completed o It is easier to prove conspiracy to murder than murder itself o You cannot commit conspiracy ito a police trap → this could be incitement to commit crime but not conspiracy Sibuyi Case o Accuseds were charged with conspiracy + other crimes o One charge related to conspiracy to commit theft aas they all agreed to commit this crime on s specific day o The crime of conspiracy comes into existence as soon as there is a “meeting of the minds” o They were found guilty Nduli Case o Defence of dissociation o Can X decide @ some point that they are no longer involved o Facts: there were 4 accused persons. Nduli (N) was accused no. 1. They reached an agreement to go rob a petrol station. N was to stand guard outside shop, whereas accused 2 and 3 enter the shop to rob it and accused 4 sits in the car ready to drive them away. During the robbery, resistance was offered by the owner of shop. Accused 2 stabbed the owner and killed him. All of them were charged with murder and conspiracy to commit murder. The facts showed that  during the robbery, N decided this robbery was too much and left the scene before the robbery took place. N’s defence was that he left the scene and thus withdrew from the conspiracy and he told this to his co-accused persons. o Legal question: Can x withdraw from a conspiracy after an agreement has been reached? At what point in time can he withdraw? Was this a valid withdrawal or had his actions advanced too much ito participating to be regarded as a valid defence? o Court held the following: ▪ Dissociation from a crime consists of some form of conduct by a collaborator to an offence with the intention of discontinuing his collaboration. ▪ The more advanced an accused’s participation in the commission of a crime, the more pertinent and pronounced his conduct will have to be to convince the court that he wished to discontinue his participation. It remains a matter of degree and fact as to the type of conduct required to demonstrate the intention to dissociate ▪ A withdrawal is effective upon timely and unequivocal notification to the co-conspirators of the decision to abandon the common unlawful purpose, but where there has been participation in a more substantial manner, something further than communication is necessary to indicate intention to dissociate o N had already progressed to an advanced stage of participation – he quit halfway through the crime. So the court rejected his defence of withdrawal on the basis that his participation in the crime was too advanced o The success of the withdrawal defence will depend on the facts of each case o If X’s actions have advanced too much, he has a more onerous burden to prove that his withdrawal was timely and unequivocal for the defence to be successful ➔ There hasn’t yet been a case where this withdrawal defence has succeeded! Basson case: o Legal question: an X still be charged with conspiracy if he conspires in SA to commit a crime outside of SA o Court held: conspiracy can only be committed iro an offence which is intended to be committed inside SA Agliotti case: o In this case the court summarised the rules relating to conspiracy i. It was held that there is no differentiation between successful + unsuccessful conspiracy ii. The crime that was envisaged did not happen iii. There should be at least 2 people iv. Act of conspiracy consists of entering into agreement v. Can be tacit need not be expressed vi. Court may infer conspiracy from conduct 1. In terms of inferences it has to be the only reasonable inference vii. The conspirators need not agree on the exact manner in which the crime must be executed viii. Intention = must be the intention to conspire with another and eventually the intention to commit the crime  Importance of sec 55 of the Sexual offences Act o Sec 55 provides: any person who o (a) attempts, o (b) conspires with any other person, or o (c)aids/abets/induces/incites/instigates/instructs/commands/counsels/procurs another person o to commit a sexual offence in terms of this Act, is guilty of an offence and may be liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable Parties to crime Participants in Crime Who are participants o all the persons who commit the crime (comply with the definition of the crime = perpetrators) and those persons who only facilitate the commission of the crime = accomplices) o Difference between perpetrator accomplice and accessory after the fact: ▪ the three different persons who may be involved in the Commission of a crime or divided into 3 categories, namely perpetrators, accomplices and accessories after the fact. ▪ The first two categories, namely perpetrators and accomplices, may jointly be described as participants. They both participate in the Commission of the crime because they either committed themselves or promote its Commission. ▪ An accessory after the fact is not a participant for he in no way promotes the Commission of the crime. ▪ The division of persons who may be involved in the Commission of the crime may be illustrated as follows: Persons involved in a crime Non- Participants paricipants Accessories Perpetrators Accomplices after the fact Who are perpetrators o a person who through his conduct, the circumstances in which the events take place, and the attitude with which it occurs, complies with all the requirements of the definition of the crime o see also the influence of the doctrine of common purpose! Kinds if perpetrators o 1) DIRECT PERPETRATOR: commits the crime himself/with his own body (eg x stabs y with a knife);  o 2) INDIRECT PERPETRATOR: commits the crime through the instrumentality of another perpetrator eg x obtains the services of y to assassinate r. see Robinson / d – “qui facit per alium qui facit per se” ▪ Robinson case The deceased had money issues and he wished to kill himself in order for his wife (accused no. 2) to get his insurance policy. He asked accused no. 3 to shoot him. Accused no. 3 initially agreed to this but later backed out. So accused no. 3 got Robinson to do it instead. Robinson charged with murder for being the direct perpetrator. Accused no. 3 (gave instructions) was the indirect perpetrator bc he gave the instructions to Robinson. Both were found guilty. ▪ D Case Mr D had a gf Ms M on a regular basis he assaulted her Mr D told his friend that he can have sex with his gf → submitted out of fear Mr D was under the bed with a gun to shoot his gf for not complying Question can D be a preparators Court incorrectly said yes o 3)CO-PERPETRATORS: where 2 or more persons act together and comply with the definition of the crime (eg mangalo) ▪ Mangalo Case Can you be a co-perpetrator to theft? One day @ a shop, there a was a lady + husband standing in line at the shop The complainant/victim and her husband were at the shops to purchase certain items. Whilst they were there, Mongalo and his friend/co-accused also entered the shop. The co-accused stole the husband’s wallet out of his back pocket. Mongalo helped. They were both charged with theft. Legal question: can you be a co-perpetrator to theft where you don’t commit the deed yourself? (no) Court held: you cannot be a co-perpetrator to theft where you do not commit the deed yourself. You can just be an accomplice. This is bc theft is a crime that must be committed with your own body o 4) CONCURRENT PERPETRATORS: person who commits a crime together with another person, but is unaware of the other concurrent perpetrator’s existance. ▪ Eg) A + B decide to kill X separately ▪ This seldomly happens Perpetrators: General Note: o unnecessary to focus on direct perpetrator or indirect perpetrator – all of them are perpetrators; o perpetrator’s liability (as oppose to accomplice) is not accessory in nature; o co-perpetrators to murder on the basis of the ordinary rules pertaining to causation o with co-perpetrators, the proof of causation difficult hence cp The Doctrine of Common Purpose Where 2 or more persons form a common purpose (hereafter referred to as ‘CP’) to commit a crime in execution of that CP, the act and causation of one person is imputed to the other → So all persons involved are perpetrators Effect of this = the State does not have to prove conduct of ALL of them + causation does not have to be proven by the state. BUT the state must still prove the fault element of each perpetrator o Eg) 5 people rob a petrol station → everyone fires at petrol attendant at the same time = cant tell who fired the first shot Garnsworthy case: o Facts: a group of strikers wanted to enforce a strike at a mine. They were interrupted by the police and during the course of this interruption, an altercation arose in which a few people were killed. They were all charged with murder. It could not be ascertained who actually killed the people bc they all acted in a common concert o Legal question: can they all be held liable on a charge of murder based on the doctrine of CP? o Court held: they had CP ito having intention to enforce the strike action o Therefore, all of them were found guilty of murder Area of application of the doctrine of CP → applies to 3 factual situations o (1) Identifiable Perpetrator ▪ A and B rob a bank → A goes in and B stands guard → A is the identifiable perpetrator, but B is also guilty as co-perpetrator of A because there is CP between both of them to rob o (2) Unidentifiable Perpetrator ▪ A gang (A, B, C, D, E) attacks a victim by stoning him → it is impossible to determine which individual’s stoning caused the death and therefore impossible to identify a single perpetrator → they are thus all guilty of murder by CP o (3) The ‘Joiner In’ ▪ X, Y, and Z decide to attack B in order to kill B. They attack B and throw stones at him causing B’s death. But before B dies, A arrives on the scene and also assaults B. But at the time that A arrives on the scene, the fatal wounds had already been inflicted. So B would have died even if A didn’t arrive on scene. So A’s actions did not cause the death of the victim → A is the joiner-in. ▪ If the joiner-in’s actions also caused death → he could be held liable ▪ If not → it is the normal joiner-in situation. ▪ A joiner in can only be held liable at most of attempted murder Motaung case o There was huge unrest in a specific area. 4 people were killed during this unrest. There was a huge funeral organized for these 4 men. A lot of people attended the funeral, including the soon-to-be deceased (D). A group of people who attended the funeral, suspected D to be a police informant. After the funeral, a group of people surrounded D and attacked her by throwing stones and inflammable material. The fatal wounds had already been inflicted at that point when M (the accused) arrived on the scene and started kicking D  o Legal Question: was M part of the criminal CP of the group pf people who attacked D? o Court held: M only came on the scene after the fatal wounds had been inflicted on D. So M’s actions did not cause or hasten D’s cause of death. M was only guilty of attempted murder based on the application of the joiner in principle o What if the victim was already dead when M kicked the victim? → M would be guilty of impossible attempt o What if M’s attack hastened the victim’s death? → M would be guilty of murder along with the group of people 3 ways in which common purpose can arise/form: o (1) By means of a prior agreement → the Safatsa construction o (2) Act of association → the Mgedezi construction o (3) Spontaneous common purpose → the Maelangwe construction By means of a prior agreement o = X, Y, and Z agree to kill A → they go to A’s home and kill A → all of them will be guilty of CP on the crime of murder by means of prior agreement o Safatsa case: ▪ D was a prominent political leader ▪ On the day 8 accuseds arrived the house of D wanting to kil him ▪ The accuseds threw rocks at his house ▪ Dragged him out of his house = stoned him in the street + set him alight ▪ Post-mortem skull fractures from stoning ▪ Court had to assess whether they can be liable for murder even though causation cannot be proved ▪ Court held that all had the requisite dolus ▪ Significance of this case: once the state has succeeded in proving that a number of accused’s had acted in CP to kill the deceased, each accused can be convicted of murder without proof by the state of a causal connection between each one’s individual conduct and the deceased’s death. Prosecution is then relieved from proving causation, but the prosecution must still prove the fault of each individual ▪ In order to convict a particular accused of murder ito the CP doctrine → the evidence must prove beyond reasonable doubt that such a person actively associated himself with the execution of the CP Act of Association o = X sees Y and Z stoning another person’s home and joins them in the common purpose. There was no prior agreement o Mgedezi case: ▪ This case set the yard stick ito when a person will be guilty of CP by means of an act of association ▪ Facts: There was unrest in the mines. A number of accused persons decided to attack the room where 6 of the leaders were residing. M joined in and attacked the room by setting it alight and 4 of the leaders died during this attack. ▪ The prosecution sat with the dilemma of causation and had to determine whose act caused the death? → this was impossible to determine  ▪ Court held all of them liable based on act of association since there was no prior agreement between them. Court found all of them guilty of murder ▪ Court laid down requirements before person can said to be liable based on an act of association: (1) X must have been present at scene of crime (2) X must have been aware of the assault on Y by somebody else (3) X must have intended to make CP with the person(s) committing the assault (4) X must have manifested his sharing of CP by himself committing an act of association with the conduct of the others (5) X must have intended to kill Y  Intention can be established by means of dolus eventualis → X foresaw that the possibility death might ensue and reconciled himself with that possibility Spontaneous common purpose o = X, Y, and Z decide to rob a petrol station. They set out and hide inside the shop. Once the owner is gone, they want to break out and steal. However, when they open the door, the alarm goes off and the owner comes back. They encounter resistance from the owner so they grab an available weapon and attack the owner until he dies → all 3 had CP to rob the owner, but did they have the CP to murder? ▪ Maelangwe case: Facts: M was walking in the street and was approached by 3 young men who inquired into where they could break into a shop in a close vicinity. M told them about the nearby shop called Steel City. They went to Steel City and hid themselves in the shop and waited until the owner closed the shop. Then they broke the door open to let M in. At that moment, the alarm went off so the owner came back to the shop. M and the 3 men had no firearms, but there were instruments in the shop that they used to attack the owner until he died. M argued he had CP to rob but NOT CP to murder Legal Question: whether CP to murder arose spontaneously at the scene of the crime when they encountered resistance? Court held:  We must look at the state of mind of the criminals. Did they foresee that during the course of the robbery, resistance might be offered and someone might be injured and killed, and reconcile themselves with this possibility?  CP can arise spontaneously where the accused’s have CP to rob and during the execution of this CP to rob, they encounter resistance and at that moment on the scene develop a CP to murder  The court can make inference Main point: where people have a CP to commit a specific crime (crime 1), the CP to commit another crime (crime 2) can spontaneously arise on the scene  They were all found guilty of murder Withdrawal (Dissociation) From Common Purpose Can someone withdraw from a common purpose (‘CP’)? South African court have not yet developed very specific rules relating to the circumstances in which withdrawal will effectively terminate X’s liability, but it's a submitted that the following propositions are a fair reflection of our law on the subject: o firstly, in order to escape conviction on the ground of withdrawal from the common purpose, X must have the clear an unambiguous intention to withdraw from such purpose o secondly, in order to succeed with the defence of withdrawal, X excellent perform some positive act of withdrawal. Mere passivity on his part cannot be equated with the withdrawal, because by his previous association with the common purpose he linked his faith and guilt to that of his companions o thirdly, the withdrawal must be voluntary. If X withdraws after becoming aware that the police had uncovered the plots, the withdrawal is not voluntary, and in any event too late it does not constitute a defence o fourthly, the withdrawal will amount to a defence only if it takes place before the course of events have reached what may be called the commencement of the execution → this is, the stage when it is no longer possible to desist all frustrates the Commission of the crime. Whether the stage has been reached depends upon the type of crime envisaged and the attendant circumstances o fifthly, the type of act required for an effective withdrawal depends upon a number of circumstances. It is evident or impossible to formulate in advance general requirements concerning the acts which are applicable in all cases. If it is possible for X to communicate with his companions command his chances of succeeding with the defensive withdrawal of bitter if he informed his companions over his withdrawal, and if he does this, his chance of succeeding with the defence of stronger if you also endeavours to persuade his companions to desist from their plan. However, for the defence to succeed he need not necessarily succeed in his attempt to dissuade them command neither is it necessary for him to actually frustrate the plan - a mere attempt on his part to do so may be sufficient to qualify as an effective withdrawal o sixthly, the role played by X in devising the plan to commit the crime has a stronger influence on the type of conduct which the law requires him to perform in order to succeed with their defence of withdrawal. Nzo case o A was a member of a pollical party o Married couple Mr and Mrs T provided lodging to another member of the pollical party suspected of having committed an offence. o This caused strain in their marriage → Mrs T threatened to go to the police and tell them everything = harbouring a criminal o Mr N overheard this conversation and he disclosed this information to Mr J. o Mr J told Mrs T to not disclose this info. o One month later he killed her. But before this murder took place, Mr N (the accused) went to the police and told them everything.  o Mr N was then charged with murder. He relied on the defence of dissociation from CP in that before the murder took place, he went to the police and provided them with all the info. His defence was accepted by the court. His act of dissociation took place before the crime was committed. o Main point: a person who voluntary withdraw from the agreement by telling the police cannot be guilty of crimes committed by another person Lungile Case o There was a break in at the shop o Police arrived o Appellate started firing shots but Lungile left the crime when the police arrived = charged with murder o Defence = he withdrew from purpose the minute he left the scene o Court rejected this decision o His level of participation had gone too far o He had already participated with the rest up to the point of execution o Defence of withdrawal = dismissed CP and crimes of negligence o Can CP apply to negligence crimes like culpable homicide? – yes o Nkwenja case: ▪ One evening, a young man and his girlfriend sat in a car. The accused and co-accused decided to rob them. They pulled open the car door and started attacking the 2 people. As a result, the boyfriend died. They were charged with murder. Their defence was that they didn’t have the intention to kill the person, they only wanted to rob them. The prosecution couldn’t prove beyond reasonable doubt that they had intention. However, it was found that they were negligent. The reasonable person in their position would have foreseen the possibility that death that might ensue as a result of the assault. They were thus found guilty of culpable homicide. ▪ Therefore, the court found that CP can also apply to crimes of negligence such as culpable homicide. However, the prosecution must prove negligence beyond reasonable doubt Criticism of CP: o Maxaba decision: ▪ The 3 accused’s came across the deceased (before he was dead) and demanded that he give them money → He said he had no money with him so he gave his watch to them → accused 1 and accused 3 then walked away. Accused 2, however, decided to go and stab the deceased to death. They were all charged with murder. ▪ The court held: ito CP, even though the act and causation are imputed, the prosecution must still prove all the individual’s fault individually (in other words: if there are 3 people involved then the prosecutor must prove fault for each of the 3 people) ▪ There is no magic spell in the doctrine of CP to say that X is automatically guilty of murder based on CP. The prosecution must prove every individual’s fault (dolus) individually Common purpose and the crime of rape This ^ is a contentious issue currently The problem with this area is that rape is a very specific crime. It’s an autographic crime which means that X can only commit it with his own body Can X and Y be co-perpetrators to the crime of rape if X performs the act of penetration and Y merely holds the victim down (meaning that both X and Y are perpetrators). Or is X the perpetrator and Y the accomplice? Tshabalala case: o There were attacks being launched in a certain area at very informal houses. During the course of these attacks, a few females were raped by the assailants. With regard to the one rape charge, all the accused’s were found guilty of rape based on the doctrine of CP but only one of them actually committed the definition of rape ▪ The common law definition of rape = the unlawful sexual intercourse by a male in respect of a female without consent o They appealed against their convictions saying that they cannot be guilty of rape based on this doctrine bc rape is an autographic offence that can only be committed by 1 person with his own body iro one other person o Their appeal was rejected. The matter eventually found itself before the CC. o The CC held that the doctrine of CP CAN apply to the common law crime of rape → X and Y can thus both be guilty as co-perpetrators of rape o However, this case was limited to offence of common law rape - not the new statutory definition of rape (why? bc the new Sexual Offences Act does not have retrospective application). Cases before 2007 will be adjudicated according to the Tshabalala decision o It has been argued that the CC erred ito this judgement bc the definition of ‘perpetrator’ is not satisfied if Y merely assists X. Y is instead an accomplice to the crime. This does not mean that Y will get less punishment than X (the perpetrator). This is a more logical application of our law Accomplices What is an accomplice? → it is a person who unlawfully and intentionally engages in conduct whereby he furthers/promotes an offence by somebody else (the perpetrator) but does not satisfy all the requirements of the crime and the conduct is not imputed to him ito common purpose, but he is nonetheless a participant o e.g.) X sets fire to a structure, but Y gave X the matches and opportunity to do so → here Y is an accomplice, not a perpetrator (bc he himself didn’t set fire to the structure) but he engaged in conduct that promoted/furthered the offence by X – this is NOT a common purpose scenario Requirements for accomplice liability: o Must be accessory in nature o There must be an act which furthers the crime o There must be unlawfulness o There must be intention Can a person be an accomplice to murder? o According to Williams → yes' o According to Safatsa → no  We must always distinguish between co-perpetrators, indirect perpetrators, accomplices, and co-conspirators in this context Accomplice liability is accessory in nature bc it is dependant on the liability of someone else acting as the perpetrator → without X, Y cannot be an accomplice on his own Accomplice conduct does NOT comply with the full definition of the crime → the accomplice just promotes the crime unlawfully and intentionally through someone else How do we grade accessoriness? → there are various methods (that are theoretical in nature) to see if the accomplice will be liable with the perpetrator o Procedural accessoriness: ▪ In order for the accomplice to be liable, the following elements must be present: act + unlawfulness + capacity + fault + conviction + sentence ▪ e.g.) If the perpetrator was found not guilty due to mental illness (he lacked capacity) → the accomplice cannot be found guilty as the perpetrator based on the accessory requirement o Hyper accessoriness: ▪ This is a less strict approach ▪ The following elements must be met to establish accomplice liability: act + unlawfulness + capacity + fault + conviction + sentence ▪ My understanding: Hyper accessoriness has the same reqs as procedural accessoriness but they are just applied in a less strict manner o Strict accessoriness: ▪ This is the one we use in our SA law o The following elements are required: act + unlawfulness + capacity + fault ▪ The following elements are NOT required: conviction + sentence ▪ In other words, X (perpetrator) does not have to be convicted in order for Y to be found guilty as an accomplice o Limited accessoriness: ▪ Only an unlawful act is required (act + unlawfulness) o Minimal accessoriness: ▪ Only an act by a perpetrator is required M Case: o M and his wife were both charged with rape. One day, the complainant/victim (C) was lured by M’s wife to their home in order for M to have sex with C. M performed the act of sex while his wife held C down. Both M and his wife were charged with rape (even though the wife did not commit the act of penetration) o Legal question: can a person be guilty of rape if they themselves didn’t perform act of penetration? o Court held: the wife can only be guilty as accomplice and not as a perpetrator. M was found guilty of rape and the wife was found guilty of being an accomplice. o The wife was an accomplice bc she furthered and promoted the crime of rape by her husband but she didn’t satisfy all the reqs of the crime of rape herself bc she didn’t perform the act Williams Case o 4 accused persons were on a train. The deceased (D) was also on this train. Accused 1 stabbed D. Accused 2 then went and pulled D out of his room and provided the opportunity for accused 3 to stab D in his neck. Accused 4 stood by  as a bystander watching these events take place. All 4 of them were charged with murder. o High court held: accused 1 and accused 3 were found guilty of murder bc they stabbed D. Accused 2 and accused 4 were found guilty of being accomplices o Legal question: can a person be an accomplice to murder or must they be a perpetrator? → there are differing opinions in our courts o Ito accomplice liability, the court found that accomplice liability is accessory in nature. In other words, if there is no perpetrator that is liable for the crime then there is no accomplice liability. The accomplice associates himself with the commission of a crime by providing assistance to the perpetrator. This can be by virtue of an omission or commission ▪ In this case, accused 4 associated himself with the crime through his omission as a bystander o An accomplice is held liable based on his own fault o Therefore, a person can be an accomplice to murder, even by means of omission. But there is room to argue that they should have all been found guilty as co-perpetrators o Remember: accomplice liability has the same punishment as the main perpetrator o Cant have an accomplice in the abstract → an accomplices act does not comply with the elements of the crime Parry case: o Court dealt with the accessoriness requirement in this case o Parry was charged with murder after he provided a gun to Mr H who used it to shoot his wife. o Legal question: should Parry be guilty as a co-perpetrator or an accomplice? o It was also discovered that Mr H was mentally ill and the court had to decide what level of accessoriness to apply o The court applied the limited accessoriness o Parry was found guilty of being an accomplice based on the limited accessoriness requirement o After this case, there hasn’t been anymore cases where the court looked at the liability curve Accessories after the fact An accomplice after the fact (hereafter ‘AAF’) is NOT a participant to the crime bc they don’t participate in the crime as a perpetrator or accomplice. Instead, they come on the scene after the crime is committed and assist the perpetrator to hide the body and cover up the crime scene The crime of accessoriness after the fact overlaps with the crime of ‘obstruction of cause of justice’ Illustration of AAF: o eg) X, Y, and Z set out to rob a petrol station. When they arrive they encounter resistance byt the owner. Shots get fired and the shop owner is killed. C (who is not part of the group) knows X, Y, and Z and says when they are done the crime, he will come to the crime scene and remove the body and fingerprints/blood.  Here, C is an AAF. The other accuseds will be charged with murder based on the doctrine of common purpose How does AAF differ from a ‘joiner-in’ o Remember: joiner-in is where X comes on crime scene after the crime has been committed and assaults the victim who has already been fatally wounded (but doesn’t cause their death) o AAF liability lies in the fact that they provide assistance to the perpetrator/accomplice to avoid liability. AAF don’t only arrive on the scene to assault the victim (like joiner-in), they actually help the perpetrator avoid liability (joiner-in doesn’t do this) Nooroodien Case : o There were 2 gangs in opposition = one gang drove white golfs and the other gang drove black golfs o D (Mr Marcel) on the day in question was passively driving in a white golf when the other gang spotted him (Nooroodien and his associates) they obviously did not like Mr Marcel because he was the leader of the other gang so they fired shots into the vehicle which killed him o Noordien and rest were charged with murder and in addition to that he was charged for being an accessory after the fact due to him assisting the rest by supplying false into to the police o Court once again reiterated the requirements of being an accessory after the fact and he had to be assessed if he could be convicted for giving false info to the police o The court found him guilty for being an accessory after the fact on that basis Principles o General rule: you cannot be an AAF in your own crime – UNLESS the exception laid out in the Jonathan ▪ Jonathan case: Facts: J (accused 1) and accused 2 and accused 3 and the deceased (D) all shared the same cell in prison. When the warden arrived, D was found dead in the cell. The post-mortem showed that he died bc of suffocation. But it couldn’t be ascertained who caused the death (was it J or accused 2 or 3?). We know one of them caused the death but we don’t know which one The prosecutor didn’t rely on common purpose in this case. It is unclear why. The court based the dilemma on causation. Causation is usually imputed to all the accuseds by common purpose – but they cannot all be convicted as co-perpetrators of murder. So the court held all of them guilty as AAF. The court also held that this ^ is an exception to the general rule ▪ Mavhungu case: Facts: M was convicted of murder in the trial court. The facts showed that M had conspired with miss N to murder miss N’s mother-in-law. They agreed on a date/time/place for the murder. They wanted to kill the mom-in-law to remove her body parts for  medicinal reasons. On this day, M was delayed ito arriving to the scene. When M arrived, he discovered that miss N had already murdered someone (not her mom-in-law though). She asked M to help her remove the body parts. M was thus not part of the murder. He only came on the scene after the murder was committed and provided assistance to the perpetrator (miss N). For this reason, M appealed his conviction of murder On appeal it was held: M was NOT a perpetrator to the crime, but rather an AAF → he associated himself with the crime afterwards by assisting the perpetrator to remove the body parts. He was accordingly convicted as an AAF (the appeal court thus altered his conviction) Note: the initial conspiracy was not to kill the stranger so he couldn’t be convicted of conspiracy here COMMON LAW CRIMES: CRIMES AGAINST LIFE CRIMES AGAINST LIFE: MURDER DEFINITION (and ELEMENTS): o Murder is the unlawful and intentional causing of the death of another human being Important: o “Causing of the death” wider than active & cold-blooded “killing” ▪ An act or omission / which causes / death “another [LIVING] human being” infringes/violates constitutional right to life (s 11) o Instances in which right to dignity (s 10) & freedom and security of the person (s 14) are also implicated The STATE MUST PROVE that the accused met all the elements of the crime CHARGE SHEET / INDICTMENT: o Clear allegation against accused containing all the elements of the crime; contains preamble, who? where? when? what? how? E.g. THAT the accused is guilty of the crime of Murder IN THAT on or about [insert date] and at or near [insert location/address] in the District/Regional Division of [insert municipality], the accused caused the death of [insert name of the deceased], a major/minor female/male person, by unlawfully and intentionally [insert action/omission] CHARGE SHEET / INDICTMENT: o Clear allegation against accused containing all the elements of the crime; contains preamble, who? where? when? what? how? ▪ E.g. THAT the accused is guilty of the crime of Murder IN THAT on or about [insert date] and at or near [insert location/address] in the District/Regional Division of [insert municipality], the accused caused the death of [insert name of the deceased], a major/minor female/male person, by unlawfully and intentionally [insert action/omission]  THAT the accused is guilty of the crime of Murder IN THAT on or about 4 August 2023 and at or near 257 Celliers street, Muckleneuk, in the District of Tshwane, the accused caused the death of Joe Soap, a major male person, by unlawfully and intentionally hitting him several times over the head with a cricket bat. Campos 2002 (1) SACR 233 (SCA) o Trial Court: ▪ Guilty of murder; 15yr sentence ▪ “Should have foreseen” the possibility that N would die and reconciled herself ▪ The distinction between murder & CH lies in fault (intention vs negligence) o SCA = was the guilty verdict on the murder charge by the Court a quo correct? ▪ Successful appeal; conviction changed to CH; sentence reduced to 8yrs ▪ “Should have foreseen” negligence (NOT intention; i.e., dolus directus or dolus eventualis) culpable homicide (NOT murder) ▪ I.e., SCA confirmed that INTENTION is a necessary requirement for MURDER ▪ MINORITY: considering the “extraordinarily violent” nature of the injury, “must have known, and therefore by inference did know, that there was a grave risk that the viciousness of her attack on the baby might cause her death and that she acted regardless of the consequence” = should have disallowed appeal but reduce murder sentence due to dolus eventualis. o Facts ▪ A baby was diagnosed with batter baby syndrome. Social services were called upon to intervene in this situation but they cleared the parents (meaning that the parents were not in trouble for battering their baby). A few months after being cleared, the baby died. According to the facts of the case, the spine of baby was broken. The mom alleged that the baby couldn’t breathe so the mom bent the baby backwards which ‘accidently’ broke the spine. The pathologists said that a spine can only break this way in car crash or plane crash ▪ The trial court sentenced the mom to 15 years prison for murder bc she should have foreseen that eventually the baby will die based on the abuse it was suffering. ▪ The wording “should have foreseen” does NOT speak to intention. However, we know that intention is an essential element of murder. For this reason, the accused appealed and said that for murder to be the charge there has to be intention. “Should have foreseen” speaks to negligence, not to intention. Therefore, the SCA reduced her sentence to culpable homicide (7 years imprisonment) ▪ Culpable homicide is based on negligence. Murder is based on intention. Therefore, the difference between murder and culpable homicide is that of fault (intention vs negligence) Nkuna 2012(1) SACR 167 (B) o Legal question: can someone be found guilty of murder when there is no deceased body that can be found?  ▪ Facts: A policewoman went missing. There was evidence to convict her boyfriend. ▪ The court held that you can charge someone with murder even if no body can be found, provided that there is enough circumstantial evidence based on public policy ▪ What was the circumstantial evidence in this case? → the judge heard many testimonies and eye witness accounts, the boyfriend was in possession of the deceased’s phone, and the length of time she was missing showed that she was more than likely deceased ▪ When there is no body, the circumstantial evidence must have probative force to warrant a conviction, there must be no ground for reasonable doubt, and there must be a reasonable explanation as to why the body cannot be found ▪ Therefore, the court convicted the accused of murder even though the deceased’s body was missing o Can someone be convicted of murder when the body of the deceased cannot be found? ▪ To require the production or discovery of the body (corpus delicti) in all cases would be unreasonable and unrealistic and in certain cases would lead to absurdities. To my mind it would lead to a gross injustice particularly in cases where a discovery of the body is rendered impossible by the act of the offender himself. It is thus proper for a court to convict an accused on circumstantial evidence provided it has the necessary probative force to warrant a conviction, and the fact that death can be inferred from circumstances that leave no ground for a reasonable doubt. o Can someone be convicted of murder when the body of the deceased cannot be found? ▪ The absence of the body (corpus delicti) is not an insurmountable bar to finding an accused guilty of murder. The learned authors make it a prerequisite that there must be a reasonable explanation for why the body should be missing. What will be a satisfactory explanation will most definitely depend on the evidence tendered. I think that not only must the explanation be satisfactory to the court, but it must also be reasonable and reconcilable with the evidence tendered. PM 2014 (2) SACR 481 (GP) o Distinction between planned and premeditated murder ▪ In my view the two words “planned” and “premeditated” are two different concepts representing two different ideas. “premeditated” refers to something done deliberately after rationally considering the timing or method of so doing calculated to increase the likelihood if success, or to evade detection or apprehension. On the other hand ‘planned’ refers to a scheme, design ir method of acting, doing, proceeding or making, which is developed in advance as a process, calculated to optimally achieve a goal. Such process has general features which include: (1) The identification of the goal to be achieved (2) The allocation of time to be spent (3) The establishment of relationships necessary to execute  (4) The formulation strategies to achieve the goal (5) Arrangement or creation of the means or resources required to achieve the goal; and (6) Directing, implementing and monitoring the process o NOTE: substantively, this is quite the artificial distinction ▪ The main point is that the murder was not committed in the spur of the moment ▪ Impacts sentencing ELEMENTS OF THE CRIME: (A) CAUSING THE DEATH (KILLING) o Voluntary (?) positive act or voluntary omission where legal duty to act actively exists o Act/omission is the (factual and legal) cause of death ▪ Factual = condictio sine qua non ▪ Legal = policy considerations o Moment of life? S 239(1) of the Criminal Procedure Act 51 of 1977 ▪ Rebuttable presumption that one was alive if breath was taken into lungs (hydrostatic test) ▪ Mashumpa 2008 (1) SACR 126 (E) A foetus/unborn child cannot be murdered; only a born & breathing child can o Moment of death? ▪ Traditional test = cardio-pulmonary test (collapse of the heart or lungs) ▪ Modern test = Brain stem death vs neo-cortical death S 1 of the National Health Act 61 of 2003: ‘“death” means brain death’ Williams 1986 (4) SA 1188 (A)  (a) Whole brain death & (b) brainstem death  Clinical death Clarke v Hurst 1992 (4) SA 630 (D)  (c) Neo-cortical death  Social death o What is life? And death? Quality? [LEGAL, MORAL, RELIQIOUS, SOCIAL, CULTURAL ISSUE] ELEMENTS OF THE CRIME: (B) ANOTHER HUMAN BEING o (I) SUICIDE AND ASSISTED SUICIDE o Grotjohn 1970 (2) SA 355 (A) ▪ Facts Wife would not be able to physically obtain the firearm without her husband Attempted suicide + suicide is not a crime = not another human being But to instigate and assist CAN BE a crime The husband was also self-serving didn’t want to be married to someone who depended on him so heavily Assisted suicide is an offence in itself Just because suicide us a solitary act another person can be considered to commit an offence  ▪ Whether a person who instigates, assists or puts another in a position to commit suicide commits an offence depends on the facts of the particular case. The mere fact that the last act of the person committing suicide is such person's own, voluntary, noncriminal act does not necessarily mean that the other person cannot be guilty of any offence. Depending upon the factual circumstances the offence can be murder, attempted murder or culpable homicide. (Attempted) Suicide is not a crime (≠ another person) BUT to assist or instigate another person’s suicide can be (= another person) o (II) INFANTICIDE o Crimen expositionis infantis: exposing or abandoning a live infant and thereby causing its death through exposure o Section 113 of the General Law Amendment Act 45 of 1935: ▪ 113. (1) Any person who disposes of the body of any child with intent to conceal the fact of its birth, whether the child died before, during or after birth, shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred pounds or to imprisonment for a period not exceeding three years. ▪ (2) Whenever a person disposes of the body of. any such child which was recently born, otherwise than.under a lawful burial order, he shall be deemed to have disposed of such body with intent to conceal the fact of the child's birth, unless it is proved that he had no such intent. ▪ (3) A person may be convicted under sub-section (1) although it has not been proved that the.child in question died before its body was disposed of. o Section 113 of the General Law Amendment Act 45 of 1935 (cont.) ▪ Molefe 2012(2) SACR 574 (GNP) Facts  Body of a still born was placed in a bucket Not murder, but a statutory offence for failing to register a stillborn child or a child who died shortly after birth in accordance with the Birth and Death Registry Conviction was set aside (essential elements were absent – “dispose”, “child”, written authorization of DPP) ▪ Sympathetic/mitigating circumstances and societal failures? ELEMENTS OF THE CRIME: (C) INTENTION o RECAP (refer to PBL 410) o Not murder if intention is absent (negligence amounts to CH) ▪ Dolus directus, dolus eventualis o Subjective test (inferred from objective facts) o NB: awareness of unlawfulness o Motive is irrelevant o Refer back to Campos ELEMENTS OF THE CRIME: (D) UNLAWFULNESS o Refer to PBL 410  ▪ Certain grounds of justification such as private defence, necessity, official capacity or obedience to order may justify an otherwise unlawful killing o We will deal with instances in which the unlawfulness of the intentional causing of the death of another person is brought into question based on the deceased consenting to their own death. ▪ Questions pertaining to unlawfulness considers the bones mores & s36 of constitution ▪ Refer back to Grotjohn o Robinson 1968 (1) SA 666 (A) ▪ Facts D was very ill + awaiting trial for committing fraud Wanted to be killed for insurance money → his wife and friend hired a hitman Backed out a few times Eventually he said no matter what I say kill me = they killed him All 3 stood trial for murder Wife and friend said they cant be charges with murder → only the hitman Because the deceased consented = mitigating factor = appeal worked = no death penalty Court reiterated that you cannot consent to your own death → consent is a mitigating factor ▪ “One of the issues in the case, novel in the history of this country, is whether the intentional and unlawful taking of a man's life, at his own request, renders the killers less blameworthy and so constitutes extenuating circumstances.” ▪ Consent does not exclude criminal responsibility of the accused BUT is consider to be an extenuating circumstance ▪ CANNOT consent to one’s own murder contra bones mores o Nkwanyana 2003 (1) SACR 67 (W) ▪ Facts Jewish lady and black man = worked at a mall and became friends She tried to take her life numerous times He said he could do → asked him to find someone to do it He was scared that the person would violate her He agreed She gave hm money to buy a gun He couldn’t do it Cried + prayed together Eventually killed her Experts said she was severally depressed = 47 shock therapy sessions He pleaded guilty Consent = irrelevant wrt to guilty and not guilty Given the extenuating circumstances = guilty but gave him a suspended sentence time served was enough  ▪ “The fact that the deceased consented in her demise is irrelevant for the purposes of the conviction … On the other hand, our Courts have not failed to take a firm stand regarding the finding of extenuating factors on a murder charge where the deceased has consented to his or her own killing. See in this regard S v Robinson and Others 1968 (1) SA 666 (A) …” ▪ “Finally, I am reminded… about what Holmes JA said in S v V 1972 (3) SA 611 (A) at 614D: 'Punishment should fit the criminal as well as the crime, be fair to the accused and to society, and be blended with a measure of mercy....’” ▪ Noble intentions o Agliotti 2011 (2) SACR 437 (GSJ) ▪ Euthanasia vs assisted suicide ▪ “ The conclusion one arrives at, at the end of it all, is that in South Africa a person assisting any other person to commit suicide — let alone actually killing the suicide requestor — will be guilty of an offence. Consequently, anyone who conspires with, aids and/or abets another to commit suicide, albeit called assisted suicide, will be guilty of an offence.” ▪ Confirms Grotjohn ▪ CANNOT consent to one’s own murder ▪ ASSISTED SUICIDE “… assisted suicide occurs when a person having emotional problems or stress requests another person to kill him – by any means.” ▪ EUTHANASIA “It is generally accepted that euthanasia takes place within the medical or patient world — where mostly a terminally ill patient either asks somebody, mostly a medical practitioner, to help him/her out of his/her misery by administering to that patient a fatal dose of something, or giving such patient medication or poisonous substance for the latter to end his/her life with. Euthanasia is divided into active and passive euthanasia as well as voluntary and involuntary euthanasia.” ▪ ASSISTED SUICIDE Not limited to medical procedures The person is still the direct cause of their own death. ▪ EUTHANASIA A medical practitioner (or someone under their direction) is the direct cause of the death. o MURDER = the (a) unlawful and (b) intentional (c) causing of the death of (d) another human being o EUTHANASIA (or “a quiet and easy death” / “mercy killing”) = (a) Unlawful and (b) intentional (c) termination of the life of a patient (d) by physician, or someone acting under the direction of a physician, (e) at the patient’s request, (f) for compassionate reasons. o EUTHANASIA (“a quiet and easy death”) ▪ IMPORTANT CONCEPTS: ASSISTED SUICIDE PHYSICIAN ASSISTED SUICIDE  Intentionally killing oneself with Intentionally killing oneself with the assistance of another person the assistance of a medical who provides the knowledge, practitioner, or person acting means, or both. under the direction of a medical practitioner, who provides the knowledge, means, or both. !!! Practitioner provides substance, but does not inject. I.e., patient injects the meds VOLUNTARY NON-VOLUNTARY INVOLUNTARY Euthanasia performed in Euthanasia performed Euthanasia performed accordance with the wishes without the knowledge of the against the wishes expressed of a competent individual, wishes expressed by a by a competent person or whether those wishes have competent person or through through a valid advance been made known personally a valid advance directive directive. or by a valid, written advance directive. ACTIVE EUTHANASIA PASSIVE EUTHANASIA Unlawful and intentional causing of death of Hastening of the death of a person by another human being through a direct action, withdrawing some form of lifesustaining at the request from that person. support and letting nature take its course. ANOTHER PERSON IS THE DIRECT cause of DISEASE/CONDITION IS THE DIRECT cause death = UNLAWFUL of death = LAWFUL ACTIVE EUTHANASIA PASSIVE EUTHANASIA E.g., Injecting someone with a lethal E.g., Removing life support equipment; substance at their request stopping medical intervention (meds & procedures); stopping food & water; not delivering CPR. Hartmann 1975 (3) SA 532 (C) Clarke v Hurst 1992 (4) SA 630 (D) Physician whose father was terminally COURT ASKED: will the removal of ill tubes be the cause of death? And Got employed @ the hospital where would the removal of the tube be his dad was lawful with respect to the living will Dad asked him to kill him and boni mores? Dr asked nurse to inject a high dose of Clarke was a co-founder of morphine = nurse was uncomfortable organisation in support of euthanasia but did it He had a living will = if he were to be Dr came back and gave another dose kept on life sustaining macines he and another drug wants them removed Medical license was suspended + Permanent vegetative state = socially couldn’t inherit + no prison time found dead guilty His wife wanted to have the equipment removed = applied to court HPSCA contested  Court had to determine if it would cayse the death = yes factual but not legal cause Would this be unlawful of the living will → no Living will = technically you are still alive Dignity was @ the forefront = patient wasn’t to live like this It was the duty of the curator to facilitate and consent to the removal if the tube This was voluntary passive euthanasia → this case is the authenticity that this is legal RELATIONSHIP BETWEEN MURDER AND EUTHANASIA PHYSICAN-ASSISTED SUICIDE (PAS) ACTIVE EUTHANASIA The doctor supplies the lethal drug on the The doctor supplies the lethal drug, on patient’s request, i.e. the doctor the patient’s request, i.e. the doctor facilitates the patient’s access to the facilitates the patient’s access to the lethal drug lethal drug. The patient self-administers the lethal The doctor administers the lethal drug to drug, i.e. the patient plays an active role the patient, usually on the patient’s in terminating their own life. request, i.e. the doctor plays an active role in terminating the patient’s life. Regarded as murder in SA law. Regarded as murder in SA law. FORMS OF EUTHANASIA Active Passive Voluntary The person actively brings The person withdraws or about the patient’s death withholds life sustaining with the patient’s informed treatment from a terminally consent. ill patient who has no prospects of recovery (medical futility diagnosis), with the patient’s informed consent. Not regarded as murder: Clarke v Hurst NO 1992(4) SA 630 (D) Non-voluntary The person actively brings The person withdraws or about the patient’s death, withholds treatment that when the patient is not preserves the patient’s life, competent to give informed when the patient is not consent (incapacitated competent to give informed patient). consent (incapacitated patient). Involuntary The person actively brings The person withdraws or about the patient’s death, withholds treatment that  against the patient’s preserves the patient’s life, communicated against the patient’s will/expressed desire. communicated will/expressed desire. ELEMENTS OF THE CRIME: (D) UNLAWFULNESS o EUTHANASIA (“a quiet and easy death”) ▪ CONTENTIOUS DEBATE [wrt VOLUNTARY ACTIVE] Elicits emotional, religious, moral, ethical, cultural issues & beliefs In (western/ised) liberal societies, the emphasis is on autonomy, self-determination, individual freedom, consent  Question: Appropriateness of employing western jurisprudence to the South African context? ▪ CONSTITUTIONAL DIMENSIONS OF V.A.E. No constitutional right to die  Legalisation: s36 and s11  Criminalisation: s36 and s10, s12, s14 Implicates s9, s10, s12, s14, s27 rights  Not only s11 – which is the foundational constitutional right violated in the case of murder (and CH) Dignity (s10) S v Makwanyane  “The right to life is more than existence, it is a right to be treated as a human being with dignity: without dignity, human life is substantially diminished. Without life, there cannot be dignity.” ▪ LEGISLATIVE SOLUTIONS TO EUTHANASIA South African Law Commission & Draft Bill: 1994… 1999… ? No recommendations as to VOLUNTARY ACTIVE euthanasia  THREE PROPOSED OPTIONS: 1) Confirm current position (?); 2) Legislative regulation – permitting MP to realise request of terminally ill but mentally competent person; 3) Legislative regulation – final decision conferred to a body with set criteria Recommended: Living Will should be legally recognised insofar as it request PASSIVE cessation of life STRANSHAM-FORD CASE o Stransham-Ford v Minister of Justice and Correctional Services & Others 2015(4) SA 50 (GP) o Held (per Fabricius J): ▪ The High Court heard the application, but two hours before the judge was due to make his order, Stransham-Ford died of natural causes. ▪ The High Court granted an order allowing Stransham-Ford to commit suicide with the assistance of a medical doctor. ▪ The High Court stated that the doctor’s conduct would not be unlawful on constitutional grounds ▪ At the time the judge made the order, both the judge and Stransham- Ford’s lawyers did not know that Stransham-Ford had died.  ▪ The judge gave his reasons for the judgment after he had found out about Stransham-Ford’s death. ▪ The judge decided not to recall the order as the judge thought that the issue was of great public importance ▪ The SCA overruled the High Court on three grounds: (1) Stransham-Ford had died before the High Court had given judgment and ‘his cause of action ceased to exist’; (2) There was ‘no full and proper examination’ of the current local/domestic (i.e. SA) and international legal position; and (3) The order was based on incorrect and restricted facts (para 5). ▪ The SCA held that the question should be answered by Parliament since ‘issues engaging profound moral questions beyond the remit [responsibility/sphere of activity/job/concern] of judges to determine, should be decided by representatives of the people of the country as a whole’ ▪ The SCA concluded at para 54: ‘… It follows that it cannot