Topic 2.1

Question 1

What is the first general requirment for criminal liability?

Answer 1

The first general requirement for criminal liability is that there must be conduct on the part of X. Conduct is an act or an omission.

Question 2

What does act in criminal law refer to?

Answer 2

The word ‘act’ refers only to the type of act mentioned in the definition of the crime with which X is charged, the type of act set out in the definitional elements of the relevant crime.

Question 3

What are the three requirments of Conduct?

Answer 3

• It must be the conduct of a human
• It must be voluntary
• Consist of an act or omission

Question 4

What is unlawful state of affairs?

Answer 4

Unlawful State of affairs conduct is a circumstance of crimes. The Court convicts if it is evident in the state of affairs that the accused voluntarily brought about the situation or did not discontinue it once realised.

Question 5

How does being in a prohibited situation or state of affairs arises through?

Answer 5

• The accused’s prior conduct (voluntarily bringing about the situation)
• The accused’s failure to terminate the prohibited state of affairs within a reasonable time.
• Through unlawful possession of a prohibited article

Question 6

What are the two elements that possession consists of two elements?

Answer 6

• Detentio - The physical control over the article.
• Animus possidendi - The intention with which control is exercised over the article.

Question 7

What was found in R v Achterdam case?

Answer 7

In the R v Achterdam case, an individual was found drunk in a constable’s garden, the constable then chased him onto the street and arrested him for being drunk in public.

Question 8

What was the facts in S v Brick?

Answer 8

In the S v Brick the accused was convicted of having porn in his possession, the materials had been seen by an anonymous sender. He claimed he intended to hand over to the material to the police, but there was no immediate action as he was tired from a business trip, however, he showed his neighbour the material and put it on display. The next evening he was apprehended with the material still in his possession.

Question 9

What is the principle in Sv Brick?

Answer 9

The principle is that where a prohibited state of affairs has not been brought about by a person’s own prior conduct, contravention will be criminalised if he fails within a reasonable time to discontinue or terminate the state of affairs

Question 10

What was the principle in R v Achterdam case?

Answer 10

The principle is that if someone else’s actions didn’t voluntarily bring about the state of affairs, the person cannot be held liable for it.

Question 11

What is an omission?

Answer 11

An omission is a negative conduct when you fail to act, this is not prima facie unlawful. It is only unlawful when there is a legal duty to act.

Question 12

What is the general rule of omission?

Answer 12

As a general rule, an omission is not unlawful, especially if acting would pose a danger to you or be harmful to you in any way.

Question 13

What is liability for an omission could only be based?

Answer 13

1. Prior conduct
2. Control of a dangerous object/thing
3. Special Protective Relationship
4. Public Office
5. Creation of the impression that interests are protected
6. Common Law/Statutory Duty
7. Legal Convictions of the Community (the over-arching test)

Question 14

What is the main principle in prior conduct omission factor?

Answer 14

Where the accused has created a potentially dangerous situation, the accused is under a legal duty to prevent the danger from materialising

Question 15

What is the main priniciple in Control of a dangerous object/thing omission factor?

Answer 15

Where the accused is in control or assumes control over a dangerous animal or object, he is obliged to continue that control and to guard against the animal or thing from causing harm.

Question 16

What is the main priniciple
in Legal Convictions of the Community (the over-arching test) omission factor?

Answer 16

Where an omission is wrongful where the legal convictions of the community say that it is wrongful and that the loss caused should be made good

Question 17

What was the facts in R v Miller?

Answer 17

In R v Miller case, the accused while sleeping at someone’s house lit a cigarette then fell asleep, and dropped the cigarette which caused a fire, the accused woke up and instead of putting out the fire just went to another room.

Question 18

What was principles R v Miller?

Answer 18

It was held that his prior conduct of going to bed with a lite cigarette resulted in a potentially dangerous situation of which he became are and took no steps to prevent or discontinue. Thus, his omission was unlawful based on prior conduct

Question 19

What are the facts in S v Fernandes case?

Answer 19

In S v Fernandes case, the accused came to his shop to find a baboon from a neighbouring shop that had come free from its enclosure. The accused took it upon himself to herd the baboon back into its enclosure which he did by scaring the baboon with a loud noise from his revolver. Whilst attempting to repair to enclosure which was known to be dangerous, the baboon escaped again and killed a baby in a pram.

Question 20

What was the principle in S v Fernandes?

Answer 20

It was held that the baboon was at all material times under the control of the accused who failed to secure the baboon adequately while tending to the enclosure, the omission was accordingly unlawful. Once the accused had the baboon in his control, there was a legal duty to continue control and ensure that the baboon did not hurt anyone.

Question 21

What was held R v Eustace?

Answer 21

In R v Eustace case, the accused was convicted of culpable homicide on the basis that he failed in his duty to control his vicious dog who bit someone and killed them. The accused failed to maintain control over his animal and therefore he was negligent and convicted of culpable homicide.

Question 22

What are the facts in the Silva’s Fishing Corp v Maweza case?

Answer 22

In Silva’s Fishing Corp v Maweza case, the plaintiff’s husband was a crew member on a ship. One day the ship drifted and carried on drifting for 9 days because employees of the defendant could not start it, the ship was checked prior and was well maintained. The defendant was informed several times that the ship was in distress

Question 23

What is the principle in the Silva’s Fishing Corp v Maweza case?

Answer 23

It was held that it was based on the omission itself and the fact that the boni mores would have necessitated a legal duty in this case. Even though the sending out of the crew created no potential danger, when the circumstances changed, there was a duty that arose

Question 24

What was the facts in the Ewels case?

Answer 24

In the Minister van Polisie v Ewels case, Ewels was attacked by “B”, an off-duty police officer in a café. Ewels then went to the police station to lay a complaint. At the police station, B was already there and beat up Ewels again. A number of on-duty police officers had witnessed the assault and failed to intervene. Ewels sued the Minister of Police, as its a delict case, on the basis of the on-duty police officers’ omission to prevent the assault.

Question 25

What was the principle in the Ewels case?

Answer 25

It was held that the circumstances in which such a duty to act may arise is not limited to the crystalised categories. A totality of factors must be considered, where an omission is wrongful where the legal convictions of the community say that it is wrongful and that the loss caused should be made good. This is to be determined on a case-by-case basis.

Question 26

What was the nature of the Legal Convictions of the Community test is as follows?

Answer 26

1. The legal convictions of the community are based on legal policy, not morals. We look to see whether the average law-abiding follower of the Constitution would have placed a legal duty on the wrong-doer to act. 2. The test for wrongfulness differs from the test for negligence. The question is not whether a reasonable person would have acted but rather, whether policy requires that a person act in the circumstances. 3. The LCC change all the time - Judges must determine the LCCs objectively although the reality is that the LCCs are inevitably informed by the judge’s personal value system.

Question 27

What needs to be considered to find the legal convictions of the community are?

Answer 27

- The values enshrined in the Bill of Rights; - The values enshrined in the Constitution; - The boni mores (good morals); - Whether the conduct is contrary to the requirement of objective reasonableness; - Whether the conduct is at variance with public or legal policy

Question 28

What is the main priniciple in special protective realtionship omission factor?

Answer 28

There will be a duty to act where a relationship of dependency and/or proximity can be established between the victim and the accused.

Question 29

What is the main priniciple in public office omission factor?

Answer 29

A duty is imposed on someone who is in public office such as a fireman or a police officer to guard against harm to those which their employment obliges them to protect.

Question 30

What is the main principle in Creation of the impression that interests are protected omission factor?

Answer 30

If someone gives an express undertaking that they will act, this may absolve a third party from having to act in the circumstances. Therefore, creating the impression that another’s interests are already protected, will mean that another may not be under a legal duty to protect those interests

Question 31

What is the main principle in Common Law/Statutory Duty omission factor?

Answer 31

If a statute imposes a legal duty to act, the failure to comply with a statute is prima facie unlawful.

Question 32

When was the legal convictions of the community factor of omission confirmed?

Answer 32

An omission will be unlawful by the legal convictions of the Community was confirmed in 1975 in the Ewels case, it was also held that all crystalised categories fall within this category.

Question 33

Which case hold the principle that omissons arent prima facie unlawfull?

Answer 33

The Ewels case, held that there is no legal basis to act if there is potential of harm towards oneself, making omission not prima facie unlawful.

Question 34

How is the special protective relationship enacted

Answer 34

The special protective relationship is enacted through dependency which can happen through physical proximity

Question 35

When is a protective special realtionship used in omissons?

Answer 35

A special protective relationship is used in scenarios where the relationship between the accused and the victim is what dictates the duty on the accused to have acted

Question 36

What are the facts in the Minister of Police v Skosana case?

Answer 36

In the Minister of Police v Skosana case, the Police were in the custody of a person complaining of stomach cramps. The detainee complained of stomach pain from the early morning but the Police failed to take the detainee to a doctor until early afternoon. The doctor informed the Police that the detainee had a ruptured bowel and required urgent surgery but a further delay resulted in him not being taken to hospital timeously. As a result, the detainee died while being operated on in the hospital.

Question 37

What was held in the Minister of Police v Skosana case?

Answer 37

It was held that when the Police took the accused into custody, a protective relationship was established with the Officers on two grounds first, they were the only persons who were able to assist the detainee and second, their capacity as Police officers imposed on them a duty to do so.

Question 38

What does the Skosana case show about the protective realtionship of omissions?

Answer 38

The Skosana case shows us that proximity (if you are the only person who can help at the time) may create a relationship of dependency

Question 39

What are the facts in the R v Govender case?

Answer 39

In R v Govender case involved the fatal assault of a person whilst in Police custody. Police officers who were not on duty and who did not participate in the assault were charged.

Question 40

What was held in the R v Govender case?

Answer 40

It was held that because the assault took place in Police custody, a relationship of dependency existed between the Police and the victim.

Question 41

What are the facts in R v Chenjere case?

Answer 41

In R v Chenjere case, the accused was in a relationship with the mother of a child and thereby assumed a protective relationship over the child. When the mother had mortally wounded the child, the accused joined her in killing the child.

Question 42

What was held in the R v Chenjere case?

Answer 42

It was held that there was positive conduct in this case in that the accused joined in the killing before the child was dead (common purpose to kill), the omission was failing to prevent the mother from striking the mortal blow, alternatively, the failure to save the child after it was wounded. Due to the existence of a relationship of dependency, the omission was unlawful

Question 43

What happened in S v A case?

Answer 43

In S v A case, a mother was obliged to prevent her child from being assaulted by her boyfriend, the failure to have done so was a breach of a legal duty based on a special protective relationship between her and the child. There was a special relationship that existed

Question 44

What happened in the S v B case?

Answer 44

In S v B case, a father was obliged to save his child from drowning by virtue of the special protective relationship between him and the child and the failure to do so was unlawful. This is because there was a special relationship that existed

Question 45

When can the factor of public office be used?

Answer 45

Not every employee is in “public office” such as a firefighter or a police officer. A contract of employment may create an obligation on an employee to act in certain circumstances but if the employee is not “on duty”, this category cannot be used.

Question 46

How does Minister of Police v Skosana realte to the factor of public office?

Answer 46

In the Minister of Police v Skosana, the police in that case were on-duty, the basis for why they owed a legal duty to help the detained person can also be founded upon the duty as public office

Question 47

How does Minister of Police v Ewels realte to the factor of public office?

Answer 47

In the Minister van Polisie v Ewels it was held that only those who fail to act while “on-duty” can be found guilty under public office. If an off-duty police officer fails to act, then the legal duty to act will have to be based on some other ground

Question 48

What are the facts of the S v Gaba case?

Answer 48

In S v Gaba case, the accused was a detective in the company of other detectives who were interrogating a suspect as to whether he was in fact a gangster referred to as “the godfather”. The accused knew this to be true but did not reveal this to his colleagues.

Question 49

What was held in S v Gaba case?

Answer 49

It was held that the accused was guilty of defeating the ends of justice. The detective’s duty was in his capacity as a detective to aid in the interrogation of a suspect for the purposes of gaining information which was already in the detective’s knowledge. His failure to reveal the information he had or to question the suspect on that information was unlawfulness on the basis of his office/employment

Question 50

What are the facts in the S v Russel case?

Answer 50

In S v Russel case, Russel was a carpenter assisting a crane operator to load pipes at a railway station. Above the crane was an open wire carrying 3000 volts of electricity which had been switched off during the loading operation. While the crane operator and his crew were on a break, other workers had switched on the electricity to allow them to do their work and they informed Russel of this indicating that they would let him know when it was safe to continue the loading operation. When the crane operator returned, Russel failed to convey this warning and the crane eventually touched the wire and one of the crane operator’s crew was electrocuted

Question 51

What was held in the S v Russel case?

Answer 51

It was held that there was a legal duty on Russel to warn the crane operator of the electricity being switched on because he created the impression that he would do so when he agreed to warn the others and thus, his failure to do so was unlawful. By accepting the warning even though he wasn't in charge of the loading operations, R created a potentially dangerous situation and a duty thereafter rested on him to prevent harm from ensuing by passing the warning onto the crane operator. Thus, by accepting the warning, R created the impression that he would protect another’s interests and his failure to have done so was wrongful. He was liable for culpable homicide.

Question 52

What was held in Halliwal case?

Answer 52

The court held that (note thT THIS IS A DELICTUAL CASE) when a person by omission, created a dangerous situation, HE MUST ENSURE THAT HE DOES WHATEVER IS REQUIRED TO PREVENT THE DANGER. the court also held that where a road authority constructs/repares a street in such a manner that has to intoduce a new source of danger which would otherwise not have existed then it must take due steps to guard against it (the prior conduct in this case is the laying of stones (cobbo) and the omission was the municipalities' failure to keep the road ina state of safe repair).