Natural forces

The voluntary nature of an act may, in the second place, be excluded if a person is propelled by natural forces, thereby causing others damage. If a hurricane blows X through Y's shop-window, X has committed no act for which he may be punished.

Automatism

Meaning of ``automatism'‘ The third - and in practice, the most important - instance in which the law does not regard the conduct as voluntary, is where a person behaves in a ``mechanical'' fashion-as in the following instances: reflex movements such as heart palpitations or a sneezing fit; somnambulism(sleep walking); muscular movements such as an arm movement of a person who is asleep, unconscious or hypnotised, or having a nightmare, an epileptic fit, or the so-called ``black-out''.

These types of behaviour are often referred to as cases of ``automatism'', since the muscular movements are more reminiscent of the mechanical behaviour of an automaton than of the responsible conduct of a human being whose bodily movements can be controlled by his will.

Involuntary conduct - automatism. While walking in his sleep, X tramples on Y's head. Does X commit assault? No, because there has been no voluntary conduct on his part.

•In Dhlamini 1955 (1) SA 120 (T) X, together with a number of other people, was sleeping on the floor of a room. He dreamt that he was being attacked and that he had to defend himself. Y stooped down to pick up a mat near X, when X, not yet awake and still under the influence of the nightmare, stabbed and killed him with a knife. X was not convicted of any crime.

•In Mkize 1959 (2) SA 260 (N) X stabbed and killed Y with a knife while he (X)was having an epileptic fit and, according to the court, acted ``as a result ofblind reflex activity''. He was acquitted on a charge of murder.

•In Du Plessis 1950 (1) SA 297 (O) X was charged with driving a motor-car negligently, thereby injuring a pedestrian. He was 72 years old and,  medical evidence (which the court accepted) at the time of the accident experienced a ``mental black-out'' as a result of low blood-pressure. He was found not guilty.

``Sane'' and ``insane automatism'‘

The courts often use the expressions ``sane automatism'' and ``insane automatism' 'The meaning of these expressions are as follows:. 'Sane automatism'' refers to cases in which X relies on the defence that there was no voluntary act on his part, because he momentarily acted ``like an automaton''. This is the defence discussed above. X does not rely on mental illness (``insanity'') as a defence. (We shall discuss this last-mentioned defence as we continue.)``Insane automatism'' refers to cases in which X relies on the defence of mental illness (``insanity'') - a defence which we shall discuss  later. In other words, he does not rely on the defence of absence of a voluntary act. Here, it is not a matter of the defence of ``automatism'‘ discussed above.

 The expression ``insane automatism'' is actually misleading, because it erroneously creates the impression that one is dealing with the defence of automatism, whereas it is in fact a completely different defence, namely that of mental illness. (In the latest case law, there are indications that the courts may perhaps be moving away from the use of this misleading expression.)

The difference between ``sane'' and ``insane automatism'' is important, for the following two practical reasons:

The first difference relates to onus of proof.

• If X relies on the defence of ``sane automatism'', the onus of proving that the act was performed voluntarily rests on the state (Trickett 1973 (3) SA 526 (T) 537).

• If, on the other hand, X raises the defence of ``insane automatism'' (i.e., the defence of mental illness), the onus of proving his mental illness rests upon X, and not the state. (This will become clearer in the discussion below of the defence of mental illness.)

The second difference relates to the eventual outcome of the case, namely whether or not X will leave the court as a free person.

•A successful defence of ``sane automatism'' results in X leaving the court a free person, as he is deemed not to have acted.

•A successful defence of ``insane automatism'', on the other hand, results in the court dealing with X in accordance with the relevant provisions of the Criminal Procedure Act dealing with the orders which a court can make after finding that X was mentally ill at the time of the commission of the crime. Although there are different types of orders which a court may make, in practice it mostly makes an order that X be detained in a psychiatric hospital for a certain period, which results in X losing his freedom - in other words, he does not leave the court a free person.

It may sometimes be very difficult to decide whether, in a given case, one is dealing with ``sane'' or ``insane'' automatism. If this question arises during a trial, a court will have to hear expert evidence and decide the issue on the basis of such evidence.

Read the following judgment : Henry 1999 (1) SACR 13 (SCA).

Defence does not succeed easily

It would be incorrect to infer from the above discussion that it is easy for an accused to succeed with a defence of automatism. Rather the opposite is the case: the attitude of a court towards a defence of automatism is usually one of great circumspection. An accused who has no other defence is likely to resort to this one in a last attempt to try and escape the consequences of his action.

 Even where` `sane automatism'' is pleaded, and the onus is on the state, X must provide a basis for his defence, by for example calling medical or other expert evidence which may create a doubt whether the act was voluntary (Trickett 1973 (3) SA 526(T) 537 and Henry 1999 (1) SACR 13 (SCA)).

Antecedent liability

Note the following qualification of the rule that muscular or bodily movements

performed in a condition of automatism do not result in criminal liability: if X

knows that he suffers epileptic fits or that, because of some illness or infirmity he

may suffer a ``black-out'', but nevertheless proceeds to drive a motor-car, hoping that these conditions will not occur while he is sitting behind the steering wheel, but they nevertheless do occur, he cannot rely on the defence of automatism.

In these circumstances he can be held criminally liable for certain crimes which require culpability in the form of negligence, such as negligent driving or culpable homicide. His voluntary act is then performed when he proceeds to drive the car while still conscious..

. We describe this type of situation as ``antecedent liability''. In Victor 1943 TPD 77, for example, X was convicted of negligent driving despite the fact that the accident he had caused had been due to an epileptic fit: evidence revealed that he had already been suffering epileptic fits for the previous thirteen years, and that he had had insufficient reason to believe that he would not again suffer such a fit on that particular day.