outstanding notes.

The definitional elements
and causation

 

 

The definitional elements signify the concise description of the requirements set by the law for liability for a specific type of crime. By ``requirements'' in this context is meant not the general requirements applying to all crimes (e.g. voluntary conduct, unlawfulness, criminal capacity and culpability), but the particular requirements applying only to a certain type of crime.

The definitional elements of a crime contains the model or formula with the aid of which both an ordinary person and a court may know what particular requirements apply to a certain type of crime. Snyman uses the expression ``definition of the prescription'' as a synonym for ``definitional elements''.

One may also explain the meaning of ``definitional elements'' as follows: all legal provisions creating crimes may be reduced to the following simple formula: `whoever does `X', commits a crime''. In this formula ``X'' is nothing other than the definitional elements of the particular crime.

The definitional elements contains not merely a description of the kind of act (possession, sexual penetration)which is prohibited, but also a description of the circumstances in which the act must take place, such as, for instance, the particular way in which the act must be committed (e.g. ``forcibly'', in robbery), the characteristics of the person committing the act (e.g. ``a person who owes allegiance'' in high treason), the nature of the object in respect of which the act must be committed (e.g. possession of ``dagga'' or ``movable corporeal property'' in theft), sometimes a particular place where the act has to be committed (e.g. parking ``on a yellow line'') or a particular time when or during which the act has to be committed (e.g. ``on a Sunday'').

CAUSATION

 

The difference between formally and materially defined crimes

Crimes may be divided into two groups according to their definitional elements, namely formally defined crimes and materially defined crimes.

In the case of formally defined crimes, the definitional elements prescribe a certain type of conduct (commission or omission) irrespective of what the result of the conduct is. Examples of crimes falling under this category are rape, perjury and the possession of drugs.

Let us consider the example of rape: here the act consists simply in sexual penetration.

The result of this act (for example, the question whether or not the woman became pregnant) is, for the purposes of determining liability for the crime, irrelevant (although it may be of importance in determining a fit and proper sentence).

In the case of materially defined crimes, on the other hand, the definitional elements do not proscribe a specific conduct but any conduct which causes a specific condition. Examples of this type of crime are murder, culpable homicide and arson.

Let us consider the example of murder. Here, the act consists in causing a certain condition, namely the death of another person. In principle it does not matter whether the perpetrator (X) stabbed the victim (Y) with a knife, shot him with a revolver or poisoned him. The question is simply whether X's conduct caused Y's death, irrespective of what the particular conduct leading thereto was.

Note! that in both formally and materially defined crimes, there must be an act. In materially defined crimes, the act consists of, for example, stabbing a knife into Y's chest (which causes Y's death), or firing a shot at him which causes his death.

The issue of causation

When dealing with materially defined crimes, the question which always arises is whether there is a causal link (or nexus) between X's conduct and the prohibited result (for example, Y's death).Please note the spelling of the word causal (as in ``causal link'').

Many students regularly misspell it, by writing ``casual link'' instead of ``causal link''! (The word` `causal'' is derived from ``cause''.) If you write ``casual'' instead of ``causal'' in the examination or test  i will penalise you!

In the vast majority of cases of materially defined crimes which come before the courts, determining whether X's act was the cause of the prohibited condition does not present any problems. If X shoots Y in the head with a revolver or stabs her in the heart with a knife, and Y dies almost immediately, and if nothing unusual (such as a flash of lightning) which might be shown to have occasioned the death occurs, nobody will doubt that X has caused Y's death.

 However, the course of events might sometimes take a strange turn, in which case it might become difficult to decide whether X's act was the cause of Y's death.

Consider, for example, the following sets of facts:

(1) X, wishing to kill Y, shoots at her, but misses. In an attempt to escape X, Y runs into a building. However, shortly before she runs into the building, Z, who has nothing to do with X, has planted a bomb inside the building because she bears a grudge against the owner of the building. The bomb explodes, killing Y. Is X's act the cause of Y's death? (Shouldn't Z's act rather be regarded as the cause?)

(2) X assaults Y and breaks her arm. Z, who has witnessed the assault, decides to help Y by taking her to hospital for treatment. She helps Y get onto the back of her truck and drives off. However, Z drives recklessly, and Y becomes so afraid that Z may have an accident that she jumps off the back of the moving truck. In jumping off the truck, she bumps her head against a large stone, as a result of which she dies. Who has caused Y's death X, Z or perhaps Y through her own conduct?

(3) Following X's assault upon Y, Y dies after the ambulance transporting her to the hospital crashes into a tree, or after she is struck by lightning on the spot where she is lying after the assault, or because she is a manic-depressive person and the assault induces her to commit suicide. In such circumstance scan one still allege that X has caused Y's death?

Determining causation in situations such as those described immediately above is one of the most vexed questions in criminal law. However, the courts have developed certain basic principles concerning this matter which they regularly apply.

In order to keep the discussion which follows within bounds, the question of causation will be discussed only in the context of the crimes of murder and culpable homicide, since problems in connection with causation in criminal law mostly arise in the context of these crimes.

Seeing that the examples and cases which will be discussed below deal with killing, it is necessary to emphasise right at the outset that ``to cause the death ''actually means to cause death at the time when, and in the circumstances in which, it took place in the particular case.

All people die at some time; therefore, when it is asked whether the act caused the death, the question in fact amounts to whether the act precipitated the death. Therefore, the fact that Y suffered from an incurable disease from which she would soon have died in any event, does not afford X a defence if she stabbed and killed Y only a few days (or even hours)before she would, in any event, have died. (See Makali 1950 (1) SA 340 (N);Hartmann 1975 (3) SA 532 (C) 534.)

The principles to be applied in determining causation

Basic principle

The basic principle relating to causation applied by the courts is the following: in order to find that there is a causal link between X's act and the prohibited condition (hereafter referred to as Y's death) (that is, in order to find that X's act caused Y's death) two requirements must be met: first, it must be clear that X's act was the factual cause of Y's death, and secondly it must be clear that X's act was the legal cause of Y's death.

X's act is the factual cause of Y's death if it is a conditio sine qua non for Y's death, that is, if there is ``but-for causation'' or a ``but-for'' link between X's act and Y's death. (We shall explain this in a moment.) If this requirement has been met, one may speak of factual causation.

X's act is the legal cause of Y's death if in terms of policy considerations it is reasonable and fair that X's act be deemed the cause of Y's death. If this requirement has been met, one may speak of legal causation.

Factual causation - conditio sine qua non

X's act is the factual cause of Y's death if it is a conditio sine qua non for Y's death.(The word ``conditio'' is pronounced ``kon-dee-tee-ho'', not ``kon-dee-show''.) Conditio sine qua non literally means ``a condition or antecedent (conditio) without(sine) which (qua) not (non)''; in other words, an antecedent (act or occurrence)without which the prohibited situation would not have materialised.

 A convenient English equivalent of this concept is but-for causation (or more precisely, but-for not causation). For an act or event to be a but-for cause, one must be able to say that but for the occurrence of the act or event the prohibited condition would not have happened.

Another way of stating the same test (i.e. the conditio sine qua non test) is by asking what would have happened if X's act had not occurred. If it is clear that in such a case the result (Y's death) would not have materialised, then X's act is a factual cause of Y's death.

Definition of conditio sine qua non theory:

An act is a conditio sine qua non for a situation if the act cannot be thought away without the situation disappearing at the same time. Therefore, in applying this formula a court must, for a moment, assume that the act in question had not occurred (``think away'' the act) and then consider whether the result would nevertheless have occurred.

If one applies only the conditio sine qua non test (or theory), one could identify a seemingly vast number of events as causes of Y's death. If X stabs Y with a knife and kills her, then it is not only the stabbing which is conditio sine qua non for Y's death, but also, for example, the manufacture of the knife, its sharpening, its sale by the shop owner. Even negative factors or antecedents will constitute causes of Y's death, for example the fact that Y did not evade X's blow, or the fact that Z neglected to warn Y of X's evil intention.

 One could even allege that if it were not for X's parents, X would not have existed and therefore the parents are also a cause of Y's death. The same could be said about X's grandparents, and in this vein one could go back all the way to Adam and Eve. (Indeed, some commentators have cynically referred to the conditio sine qua non formula as` `Adam and Eve causation''.)

Legal causation - general

It is exactly because of the wide sweep of the conditio sine qua non test (i.e. the large number of factors that may in terms of this test be identified as a cause of Y's death) that it is necessary to apply a second criterion by which one may limit the wide range of possible causes of Y's death. This second criterion is usually described as the test to determine legal causation.

The idea behind this second criterion is the following: When a court is called upon to decide whether X's conduct caused Y's death, the mere fact that X's conduct is a conditio sine qua non for Y's death is insufficient as a ground upon which to base a finding of a causal link. Other factors besides X's conduct may equally qualify as conditiones sine qua non for Y's death. When searching for the legal cause (or causes) of Y's death, a court eliminates those factors which, although they qualify as factual causes of Y's death, do not qualify as the cause (or causes) of Y's death according to the criteria for legal causation (which will be set out hereunder).

In the legal literature certain specific tests to determine legal causation have evolved, such as those which determine the ``proximate cause'', the ``adequate cause'', or whether an event constituted a `'novus actus interveniens''. We shall presently consider these more specific criteria for legal causation. At the outset, however, it should be emphasised that generally the courts are reluctant to choose one of these specific tests as a yardstick to be employed in all cases in which legal causation has to be determined, to the exclusion of all other specific tests.

Sometimes they rely on one, and sometimes on another of these tests, according to whether a particular test would, in their opinion, result in an equitable solution. Sometimes they may even base a finding of legal causation on considerations outside these more specific tests. Before elaborating further on this open-ended approach to legal causation by the courts, we first consider the different specific criteria which have been formulated to determine legal causation