MODULE 3:

CONDUCT

[page 51- 63 Snyman]

1. Legality

2. Conduct 3. Causation

4. Unlawfulness 5. Criminal accountability/ capacity

6. Fault

For a person to be found guilty of a crime, the State must prove beyond a reasonable doubt that the accused perpetrated an act. Thinking something does not constitute conduct. Conduct may however be slight. This means that a threatening attitude or a threat itself could in certain circumstances constitute assault.

Def: “Conduct is any voluntary, personal behaviour.” 1. “any” – any juridically relevant behaviour. When behaviour can be casually associated with the perpetrated crime (this is connected to causation!) it is important and relevant Eg. a person drinks to gather the courage to commit murder. The drinking is juridically relevant as it makes the person non- criminally accountable 2. “personal” – conduct of either a human or a body corporate A company may thus also fall under this definition and may be charged in terms of S 332 of the Criminal Procedure Act, Act 51 of 1977 of perpetrating a crime Eg. Fraud

3. “behaviour” – both positive conduct (commissio) and negative conduct (omissio). Eg. +: stabbing a person to death with a knife -: policeman looking on as a person is being assaulted

In some cases a person has a duty or legal obligation to act positively Failure to act positively in these circumstances may be punishable (moral duty// legal duty)

General rule – a person has a positive duty to act if the legal convictions of the community require the person to do so

A legal duty exists in the following: •In terms of legislation – to act in a certain way after a car accident (S 93 of the National Road Traffic Act of 1996) •In terms of the common law - report treason •In terms of agreement – to watch someone else’s house while they are away •Where a person controls a dangerous or potentially dangerous object – see Fernandez case •When a person is in a protective relationship – parent/ guardian and child •Previous positive conduct – where a person lights a fire in a dry field and neglects to put it out •Office – see Ewels case •In terms of a court order – an order to pay maintenance after a divorce

: S v Fernandez 1966 (2) SA 259 A S v B and Another 1994 (2) SASV 237 (OK) 248 [SELF STUDY!]

S v Russel 1967 (3) 739 N Minister of Police v Ewels 1975 (3) SA 590 A

4. “voluntary” – behaviour which is controlled by will. Not necessarily conduct that is wished for A person who drives over a red traffic light to avoid being hit by the car coming from behind being driven by a person who is not going to stop (controlled by will but not wished for) // a person who sleepwalks (not controlled by will and thus involuntary) Volunteerism may be excluded by: •Absolute force •Forces of nature •Automatism = behaviour in a mechanical fashion Eg. fits during an epileptic fit, somnambulism, muscular movements while you sleep The question to be asked: could a person direct their will?

2 types

KEEP IN MIND: there is a presumption in law that everybody is compos mentis.

Automatism voluntary conduct The defence of absence of conduct may be raise when the accused did not act voluntarily (not under control of will) [NOTE!!! Courts are disinclined to accept automatism as a defence as it is easy to fake]

SANE automatism INSANE automatism

Sleep walking, amnesia, reflex movements, drunkenness and absolute duress

Mental illness or mental defect

The first difference relates to the onus of proof

X relies on the defence of sane automatism: State must prove that X acted voluntarily

X relies on the defence of insane automatism: X must prove his mental illness

The second difference relates to the eventual outcome of the case (will the accused leave a FREE person?)

A successful defence leads to a person leaving the court a free person

A successful defence leads to the accused being treated in terms of the relevant sections of the Crim Proc Act: detention in a psychiatric facility, thus the accused loses his freedom

Involuntary when a person acts while asleep or in a phase between sleeping and waking

Cannot be criminally liable as the do not act IN THE LEGAL SENSE OF THE WORD

R v Dlamini 1955 (1) SA 120 T

Not always a defence Only amnesia

could be raised as a defence and not amnesia which sets in afterwards.

voluntary When a person kills another person due to a reflex they should not be held criminally liable

Sometimes, mental illness can make a person act involuntarily (refutable) PRESUMPTION THAT ALL PERSONS ARE NORMAL (in favour of the State) The accused, who raises the defence of insane automatism, must prove on a balance of probability that he is not mentally healthy See S 78(1A) of the Crim Proc Act 51 of 1977

[The onus of proof (burden of proof) is on the accused] Defence is successful >>> not guilty >>> 78(6) Crim Proc Act

78. Mental illness or mental defect and criminal responsibility.—

(1A) Every person is presumed not to suffer from a mental illness or mental

defect so as not to be criminally responsible

Position BEFORE 1981

S v Johnson 1969 (1) SA 201 A

The reason behind this is that a reasonable man would not get intoxicated to such an extent and for this reason “fault” and “conduct” had already been present at the time of drinking

Up to and including 1980- if a person voluntarily became so drunk that he falls into a state of automatism and kills another person by stabbing him with a broken bottle he is guilty of culpable homicide.

Position AFTER 1981 The position was changed in the Chretien case Crimes which require intention should consider the conduct which causes the unlawful consequence (death) Rather the stabbing movement, than drinking beforehand ONLY culpable homicide if it was reasonably foreseeable that the stabbing would happen at the time of drinking (negligence has to be proven)

INVOLUNTARY conduct perpetrated in a drunken state does not comply with the element of conduct VOLUNTARY conduct while drunk is tested against whether or not the perpetrator is perhaps not liable on the grounds of incapacity/ criminal unaccountability (fault) [conduct] + [criminal accountability] = guilty of crime

S v Chretien 1981 (1) SA 1097 A

The Chretien case was criticised heavily (keep in mind when we get to Module 6: discussion of Act 1 of 1988) Act did not influence the Chretien case regarding that a person may be automatically drunk BUT there are degrees of drunkenness (only a certain degree diminishes capacity)

Sometimes considered a defence of automatism Eg. when someone places their hand over the perpetrators hand on a gun and pulls the trigger

Absolute force (Vis absoluta) Relative force (vis compulsiva)

Voluntariness of act is EXCLUDED conduct

Justified/ excused by necessity = conduct

The perpetrator is not able to control their body or movements by will

The perpetrator is able to control their body or movements by will BUT they are coerced/confronted with harm if they choose to not carry the act through

X is peeling an apple with a knife when Z, who is much bigger and stronger than X, grabs her hand and forces it into Ys chest who dies from this. X did not act voluntarily and therefore did not perform the act. Y performed the act.

Z orders X to shoot and kill Y. if X does not do what Z orders, Z threatens to kill X and X’s entire family

X knows that he suffers from epilepsy and may

suffer a black- out but still gets in her car

and drives. X suffers an attack and when she

blacks- out, causes an accident which kills two

people.

Is she criminally liable?

YES!

According to antecedental liability she made

the voluntary choice to drive and this set in

motion a casual chain reaction which lead to a

harmful unlawful result.

Called a ommissio per commissionem

The omission follows a commission (positive

act) which has created a duty to act positively

S v Van Rensburg 1987 (3) SA 35 T

R v Schoonwinkel 1953 (3) SA 136 C