Voluntary conduct

Question 1

What is the definition of voluntary conduct?

Answer 1

All humans are born with the ability to choose freely between different courses of action. Therefore, the individual can be held responsible for the consequences of their actions. Criminal conduct must be voluntary, in that is controlled by the accused’s conscious will. All persons are presumed to have acted voluntarily.

Question 2

What are the two stages of voluntariness?

Answer 2

Is the person capable of controlling their conscious will and was the conduct in question in fact controlled by their conscious will?

Question 3

Is there a defence to voluntariness?

Answer 3

If the accused acted involuntarily, in a state of automatism, then they cannot be held criminally liable. This includes sleepwalking and epilepsy. However, an exception to this rule is if the accused deliberately put themselves in a state where they could no longer control their actions, in order to commit a crime.

Question 4

So, can criminal liability result for someone who deliberately put themselves in an involuntary situation?

Answer 4

Criminal liability can arise from (a) prior voluntary conduct combined with (b) the requisite antecedent fault, which is (c) casually linked to the unlawful consequence, even though at the time of the consequence resulting, the accused was in fact acting involuntarily.

Question 5

Why does criminal law require conduct?

Answer 5

Criminal law does not punish thoughts. Therefore, liability will only arise for an act. Hence, the evil thought must lead to conduct that brings about the consequence (i.e. murder). Not all acts require a consequence to be a crime (e.g. drunk-driving).

Question 6

Can one be held liable for an omission (failure to act)?

Answer 6

South African law contains no legal duty to intervene. This is to maximise individual liberty. A person is not under a legal duty to protect another from harm, even though they can easily and morally ought to do so [Ewels].

Question 7

What are some of the exceptions to the general rule that no liability arises for omissions?

Answer 7

1) prior conduct
2) control of a potentially dangerous animal or thing
3) special or protective relationship
4) public/quasi-public office
5) statute
6) contract or other undertaking

Question 8

Elaborate more on 1) prior conduct

Answer 8

Where a person has, through their own conduct, created a potentially dangerous situation, they are under a legal duty to prevent the danger from materialising [R v Miller: cigarette fire]

Question 9

Elaborate more on 2) control of a potentially dangerous animal or thing

Answer 9

Where a person has control of a potentially dangerous thing which may cause harm unless the necessary precautions are taken, they are under a legal duty to act in protection of third parties.

Question 10

Elaborate more on 3) special or protective relationship

Answer 10

A policeman is under a legal duty to prevent a person from being assaulted by another person. The police owe a duty to protect the public in general [Carmichele]. A father of a child is under a duty to prevent their child from drowning.

Question 11

Elaborate more on 4) public/quasi-public office

Answer 11

Under a legal duty to care for someone in their charge. Policeman are obliged to report a crime, whereas ordinary citizens are not. Due to their legal duty, policemen would be under a legal obligation to report the crime.

Question 12

Elaborate more on 5) statute

Answer 12

The National Road Traffic Act obliges drives involved in an accident to stop, ascertain the nature and extent of injuries sustained by any person or any damage and to render assistance. Where a statute obliges one to act, the defences of impossibility may be available.

Question 13

Elaborate more on 6) contract or other undertaking

Answer 13

Where a doctor undertakes to perform surgery on a patient, there may be an agreement concerning causation in relation to potential death.

Question 14

Is this a closed list of defences, and what other grey areas might exist?

Answer 14

No - it is not a closed list of defences. Potential grey areas include whether doctors are under a legal obligation to protect partners who may not know that their partner has HIV?

Question 15

What is a state of affairs?

Answer 15

Being drunk in a public place or being in possession of housebreaking implements constitute prima facie unlawful ‘states of affairs’. It does not involve positive conduct or omission, but it simply just is. It must take into account whether the accused has reasonable time to terminate the state of affairs for which they are liable.

Question 16

When is causation required?

Answer 16

In crimes that involve an unlawful consequence, as opposed to circumstance, there must be a causal link between the initial act or omission and the ultimate consequence. Both factual and legal causation have to be satisfied before criminal liability for a consequence crime can arise.

Question 17

How is factual causation determined?

Answer 17

If the consequence would not have resulted ‘but for’ the conduct of the accused, the conduct of the accused is a factual cause of the consequence.

Question 18

Provide a case summary of Minister of Police v Skosana

Answer 18

T had driven his motor car off the road and landed in a ditch. T died as a result of the accident, sometime the following day - after being delayed medical treatment for quite some time.

Was T’s death factually caused by the failure of the two police constables to take reasonable steps to ensure that the detainee received expeditious medical care?

There was liability for negligence. It could be proven that had T undergone the operation 5 hours earlier, there was a greater than 50% chance that he would have survived. Hence, the deceased would have survived, but for the delayed action on the part of the police officers.

Question 19

Provide a case summary of Lee v Minister of Correctional Services

Answer 19

Delictual damages suffered by the applicant as a result of contracting TB while in detention.

Did the failure by the Correctional Services to take preventative and precautionary measures cause the applicant to be infected with TB while in detention?

This Court denied the introduction of new evidence, as well as the application for an alternate remedy based on Constitutional damages. It held that although impossible to eliminate the risk of TB in prisons, such a risk ought to be reduced. If the SCA approach was followed, no inmate ever would be able to prove causation, leaving no remedy available to prejudiced prisoners. Hence, because the respondent is delictually liable, the appeal was upheld. The defendant’s negligent omission increased the risk of the harm occurring.

Question 20

Why might the courts be unwilling to impose criminal liability on authorities for negligent omissions?

Answer 20

The state has limited resources. Carmichele, K v Minister and Lee all dealt with delictual claims. It is difficult to prove beyond reasonable doubt that a negligent omission caused the unlawful consequence.

Question 21

What does legal causation seek to do?

Answer 21

Seeks to limit the liability of persons so that they are not held liable for wholly disproportionate consequences. The general test is whether there is a sufficiently close connection between the accused’s conduct and the unlawful consequence [Mokgethi].

Question 22

What are the three tests for legal causation?

Answer 22

1) intervening act
2) adequate cause test
3) proximate cause test

Question 23

Define a 1) novus actus interveniens

Answer 23

An abnormal, intervening act or event breaks the chain of causation. The normality or abnormality of an act or event is judged according to human experience.

Question 24

When will conduct break the chain of causation?

Answer 24

i) was the act or event abnormal or unlikely in light of the human experience
ii) more likely to be found to be novus actus if the injury inflicted by the accused is not a mortal one
iii) less likely to be found to be novus actus if there were additional causes of the consequence i.e. if you fired the second shot
iv) more likely to be an intervening act if the conduct is voluntary

Question 25

When won't conduct break the chain of causation?

Answer 25

v) the defence does not stand if the consequence was foreseen or planned by the accused i.e. multiple perpetrators whose combined acts result in an unlawful consequence vi) the victims pre-existing physical susceptibilities vii) medical intervention - unless mortal wound is treated [Mokgethi] viii) encouragement to commit suicide

Question 26

Provide a case summary of S v Tembani

Answer 26

Can an assailant who inflicts a wound, which without treatment would be fatal, but which is readily treatable, escape liability for the victim’s death because the medical treatment in fact received is sub-standard and negligent? The appellant’s main submission was that the hospital staff and doctors were grossly negligent and that this broke the chain of causation between his attack on 14 December and her death on 28 December, thus exempting him from liability for murder. At a factual level, the shooting caused the death. At a legal level, it is not unreasonable to expect the assailant to assume that adequate medical attention will be administered to their victim. However, due to resource constraints and the complexity of the medical field, should such medical attention not be forthcoming, the accused is not absolved of criminal liability and moral blameworthiness. As such, the accused stands guilty of murder, where the wound is fatal. A negligent act or omission will not constitute a novus actus interveniens.

Question 27

Define the 2) adequate cause test

Answer 27

An act is a legal cause of a situation if, according to human experience, in the normal course of events the act has the tendency to bring about that type of consequence.

Question 28

Define the 3) proximate cause test

Answer 28

An act sufficiently related to the unlawful consequence can be deemed to be the legal cause of the unlawful consequence.

Question 29

What were the facts and issue in S v Daniels?

Answer 29

The first accused shot the deceased in the back. Without emergency medical treatment (which was inaccessible), the back wounds would have resulted in death within half an hour; but the victim then received a second gunshot to the head. This caused instant death. Since it was reasonably possible that it was not the first accused, but the second, who inflicted the head injury, the question was whether the first accused bore responsibility for the death.

Question 30

What was held in S v Daniels?

Answer 30

The court split. Nicholas AJA and Botha JA considered that the perpetrators acted with common purpose; since their joint conduct caused the death the first accused was guilty of murder; but without the common purpose the reasoning in Mbambo applied, with the result that he could not have been found guilty of murder. Van Winsen AJA and Jansen JA disagreed. They treated the views expressed in Mbambo as obiter, but in any event dissented from them: they considered that, as a matter of policy, a perpetrator who inflicts a wound that will in the circumstances cause death should not escape liability for the death merely because a subsequently inflicted mortal wound hastens death. The first accused is guilty of murder. Trengove JA however agreed with Nicholas AJA that the first wound could not be considered a cause of death because of the supervention of the second; but finding no common purpose he held that a conviction only of attempted murder was competent.

Question 31

Provide a case summary of S v Mokgethi

Answer 31

A gunshot rendered the deceased a paraplegic confined to a wheelchair. Despite the injury he recovered well, and received instruction on the dangers of pressure sores and their prevention. But he unreasonably failed to apply proper self-care, and pressure sores developed that led to septicaemia from which he died six months later. Held that the negligent and unreasonable conduct of the victim himself interrupted the chain of causation. The court held that the assailants could not be held responsible for his death, but only for attempted murder.