OMISSIONS

We have explained above that the word ``act'', when used in criminal law, bears a technical meaning in that it can refer to both positive behaviour (commissio) and a failure to act positively - that is, an omission (omissio). We now proceed to discuss liability for omissions.

Legal duty to act positively

                                                                                 General rule

Read the following judgment : Minister van Polisie v Ewels 1975 (3)SA 590 (A).

An omission is punishable only if there is a legal duty upon X to act positively. Amoral duty is not the same as a legal one. When is there a legal duty to act positively?

The general rule is that there is a legal duty upon X to act positively if the legal convictions of the community require him to do so. This was decided in Minister van Polisie v Ewels 1975 (3) SA 590 (A) 597A-B.

Let us consider the following example.

X, a strong and healthy adult male, is standing next to a shallow pond in which Y, a child, is drowning. X fails to rescue Y. (Assume that X is neither Y's father or guardian nor a lifesaver on duty.) X could have saved Y's life merely by stretching out his arm to Y and pulling him out of the water, but he failed to do this. Can X be held criminally liable for Y's death on the ground of his omission?

Although, there has, as far as we are aware, not yet been a reported decision in which our courts have given a specific ruling on the question which arises in this specific set of facts, we submit that in such a set of facts X indeed has a legal duty to act positively, since the legal convictions of the community require X to act positively in these circumstances.

 

Legal duty: specific instances

 

 

These specific instances are the following:

(1)A statute may impose a duty on somebody to act positively, for example to complete an annual income-tax return, or not to leave the scene of a car accident, but to render assistance to the injured and to report the accident to the police (s 61 of the National Road Traffic Act 93 of 1996).Recently, the state has imposed several legal duties on individuals and institutions to report on persons who commit crimes.

For example, there is a duty on a person who knows that the offence of corruption has been committed to report such knowledge to the police (section 20 of the Prevention and Combating of Corrupt Activities Act 12 of 2004). The failure by an individual or accountable institution to report knowledge of the commission of certain financial crimes is also made punishable (in terms of various provisions of the Financial Intelligence Centre Act 2001).

(2) A legal duty may arise by virtue of the provisions of the common law. (Remember: ``common law'' means those rules of law which are not contained in legislation.)

Example:

 According to the provisions of the common law dealing with the crime of high treason, a duty is imposed one very person who owes allegiance to the Republic and who discovers that an act of high treason is being committed or planned, to reveal this fact as soon as possible to the police. The mere (intentional) omission to do this is equivalent to an act of high treason

(3) The duty may arise from an agreement. In an English case, Pitwood (1902) 19 TLR 37, the facts were that X and a railway concern had agreed that for remuneration, X would close a gate every time a train went over a crossing. On one occasion he omitted to do so and in this way caused an accident, for which he was held liable.

 (4) Where a person accepts responsibility for the control of a dangerous or potentially dangerous object, a duty arises to control it properly. In Fernandez 1966 (2) SA 259 (A) X kept a baboon and failed to repair its cage properly, with the result that the animal escaped and bit a child, who later died. X was convicted of culpable homicide

(5) A duty may arise where a person stands in a protective relationship to somebody else, for example, a parent or guardian who has a duty to feed a child. In B 1994 (2) SACR 237 (E) X was convicted of assault in the following circumstances: She was married and had a child, Y, who was two and a half years old. Her marriage broke up and she began living with another man, Z. Z

repeatedly assaulted Y. X was aware of these assaults, but did nothing to stop Z. As Y's natural mother, X had a legal duty to care for and protect Y and to safeguard his well-being. By omitting to prevent the assaults, she rendered herself guilty of assault upon Y. (Z was also convicted of the assault upon Y.)

 

(6)A duty may arise from a previous positive act, such as where X lights a fire in an area where there is dry grass, and then walks away without putting out the fire to prevent it from spreading. We sometimes refer to this type of case as an omissio per commissionem (an omission following upon a positive act which created the duty to act positively).

(7) A duty may sometimes arise by virtue of the fact that a person is the incumbent of a certain office. It was held in Minister van Polisie v Ewels 1975(3) SA 590 (A) that a policeman who sees somebody else being unlawfully assaulted has a duty to come to the assistance of the person being assaulted.

 

In Gaba 1981 (3) SA 745 (O), X was one of a team of policemen who were trying to trace a certain dangerous criminal called ``Godfather''. Other members of

the investigation team had arrested a suspect and questioned him in X's presence with a view to ascertaining his identity. X knew that the suspect was in fact ``Godfather'', but intentionally refrained from informing his fellow members of the investigation team accordingly. Because of this omission, he was convicted of attempting to defeat or obstruct the course of justice. Relying on Minister van Polisie v Ewels (supra), the court held that X had a legal duty to reveal his knowledge, and that this duty was based upon X's position as a policeman and a member of the investigating team.

(8) A legal duty may also arise by virtue of an order of court. Example: X and Yare granted a divorce, and the court which grants the divorce, orders X to pay maintenance to Y, in order to support her and the children born of the marriage. If X omits to pay the maintenance, he commits a crime.

(8) A legal duty may also arise by virtue of an order of court. Example: X and Yare granted a divorce, and the court which grants the divorce, orders X to pay maintenance to Y, in order to support her and the children born of the marriage. If X omits to pay the maintenance, he commits a crime.