SCOPE FINAL EXAM

• INTOXICATION
• MISTAKE
• UNLAWFULLNESS A-D
• INTENTION
• THEORIES OF PUNISHMENT
• OMISSION
• DONT FORGET TO LOOK AT THE CASE OF GOOSEN 1989 AND OTHER CASES.

NB PLEASE BE ADVISED THAT YOU ARE TO DO REVISION ON ALL WORK DONE, GO THROUGH THE CLASS NOTES LEARN THE LATIN TERMS.

GOOD LUCK!!!

THE EFFECT OF INTOXICATION ON PUNISHMENT

In all the instances where X, notwithstanding her intoxication, is found guilty of the crime she is charged  with, the intoxication can be taken into account by the court in sentencing her, resulting in a more lenient punishment.

This is a daily practice in our courts. Intoxication cannot, however, result in a more lenient punishment in the case of a crime in which intoxication is an element of the crime, such as driving a motor car under the influence of liquor

The effect of provocation on liability

SUMMARY

(1) Provocation may have one of the following effects:

•it may exclude X's intention

• it may confirm the existence of X's intention

•after conviction it may serve as ground for the mitigation of punishment

(2) If X is charged with murder, and the court finds that the provocation excluded his intention, he is usually convicted of culpable homicide, because it is usually clear from the evidence that he was negligent.

(3) If X is charged with assault with intent to do grievous bodily harm, in most cases the evidence of provocation serves to exclude the intention to do grievous bodily harm. X is then found guilty only of common assault (which is a less serious crime than assault with intent to do grievous bodily harm).

(4) If X is charged with common assault, the evidence of provocation cannot result in X's being found not guilty of the crime charged. The courts are unwilling to treat provocation as a reason to completely acquit a person of common assault. This approach is based on policy considerations and does

not necessarily accord with legal theory.

 

Negligence

A person's conduct is negligent if

(1) a reasonable person in the same circumstances would have foreseen the possibility
(a) that the particular circumstance might exist, or
(b) that his conduct might bring about the particular result;
(2) a reasonable person would have taken steps to guard against such a possibility; and
(3) the conduct of the person whose negligence has to be determined differed from the conduct expected of the reasonable person.

Read on a reasonable person and on reasonable foreseeability!

The concept of the ``reasonable person''

The expression ``reasonable person'' appears in both the first and the second legs (points (1) and (2)) of the definition of negligence. Before considering the first two legs of the definition, it is necessary first to explain what is meant by ``reasonable person''.

(1) The reasonable person is merely a fictitious person which the law invents to personify the objective standard of reasonable conduct which the law sets in order to determine negligence.

(2) By ``reasonable person'' is meant an ordinary, normal, average person. Look at this case Mbombela 1933 AD 269 273

(3)The reasonable person is therefore not somebody who runs away from every foreseen danger; he may sometimes take a reasonable risk.

(4) The reasonable person-concept embodies an objective criterion. Personal, subjective characteristics such as his or her sex, race, emotional stability or lack thereof, degree of education, or superstitiousness or lack thereof, are not taken into account.

(5) The reasonable person is not a perfectly programmed automaton which can

never make a mistake. He remains an ordinary flesh-and-blood human being whose reactions are subject to the limitations of human nature. In crisis situations, when he has to take a quick decision, he can, like any other person, commit an error of judgment, that is take a decision which later turns out to be wrong. It follows that the mere fact that somebody has committed an error of judgment does not necessarily mean that he was negligent.

Reasonable foreseeability

Under this heading we discuss the first leg (ie point (1)) of the definition of negligence given above, that is the question whether the reasonable person would have foreseen the possibility of the particular circumstance existing or the particular result ensuing. In practice this is the most important leg or component of the test for negligence.

(1) The courts sometimes ask whether the reasonable person would have foreseen the possibility (of the result ensuing), and on other occasions again, whether X ought reasonably to have foreseen the possibility. However, it is beyond doubt that both expressions mean the same: foreseeability by the reasonable person and reasonable foreseeability by the accused are viewed as the same thing.

 

The effect of intoxication on liability

It is well known that the consumption of alcohol may detrimentally affect a person's capacity to control her muscular movements, to appreciate the nature and consequences of her conduct, as well as its wrongfulness, and to resist the temptation to commit wrongful acts. It may induce conditions such as impulsiveness, diminished self-criticism, overestimation of her abilities and under-estimation of dangers.

It may also result in a person being unaware of circumstances or consequences which she would have been aware of had she been sober. What is the effect, if any, of intoxication on criminal liability?

What is said here of intoxication resulting  from the consumption of alcohol or liquor, applies equally to intoxication resulting from the use of drugs, such as dagga and etc.

1. INVOLUNTARY INTOXICATION

It is necessary first to distinguish between voluntary and involuntary intoxication. By ``involuntary intoxication'' is meant intoxication brought about without X's conscious and free intervention, as in the following examples: X is forced to drink alcohol against her will; or X's friend Y, without X's knowledge, pours alcohol or a drug into X's coffee, which results in X becoming intoxicated and committing a crime while thus intoxicated (as happened in Hartyani 1980 (3) SA 613 (T)). It is beyond dispute that involuntary intoxication is a complete defence. The reason for this is that X could not have prevented the intoxication, and therefore cannot be blamed for it.

2. VOLUNTARY INTOXICATION

As far as voluntary intoxication is concerned, three different situations have to be clearly distinguished:

(1) the actio libera in causa:where X intends to commit a crime, but does not have the courage to do so and takes to drink in order to generate the necessary courage.

(2) intoxication resulting in mental illness: X is acquitted in terms of section 78(6) of the Criminal Procedure Act, owing to lack of criminal capacity,  and

(3) the remaining instances of voluntary intoxication

CASE LAW: Chretien 1981 (1) SA 1097 (A). In this case X, who was intoxicated, drove his motor vehicle into a group of people standing in the street. As a result, one person died and five people were injured. He was charged with murder in respect of the person who died and attempted murder in respect of the five persons injured.

The court found that owing to his consumption of alcohol, X expected the people in the street to see his car approaching and move out of the way, and that therefore he had no intent to drive into them. On the charge of murder he was convicted of culpable homicide, because the intention to kill had been lacking.

X could not be found guilty on any of the charges of attempted murder owing to the finding that he did not have any intent to kill. The question arose, however, whether X should not have been found guilty of common assault on the charges of attempted murder. The trial court acquitted him on these charges.

The state appealed to the Appellate Division on the ground that the trial court had interpreted the law incorrectly and that it should have found the accused guilty of assault. The Appeal Court found that the trial court's decision was correct.

This case is a must know!

Summary of legal points decided by Appellate Division (Rumpff CJ) in Chretien

(1) If a person is so drunk that her muscular movements are involuntary, there can be no question of an act, and although the state in which she finds herself can be attributed to an excessive intake of alcohol, she can nott be found guilty of a crime as a result of such muscular movements.

(2) In exceptional cases a person can, as a result of the excessive intake of alcohol, completely lack criminal capacity and as a result not be criminally liable at all. This will be the case if she is ``so intoxicated that she is not aware that what she is doing is unlawful, or that her inhibitions have substantially fallen apart''.

(3) The ``specific intent theory'' in connection with intoxication is unacceptable and must be rejected. It is precisely because of the rejection of this theory that in this case X could not even be convicted of common assault. The intoxication can therefore even exclude X's intention to commit the less serious crime, namely assault.

(4) The Chief Justice went out of his way to emphasise that a court must not lightly infer that owing to intoxication, X acted involuntarily or lacked criminal capacity or the required intention since this would discredit the administration of justice.