CONSENT

Consent by the person who would otherwise be regarded as the victim of X's conduct may, in certain cases, render X's otherwise unlawful conduct lawful. To generalise about consent as a ground of justification in criminal law is possible only to a limited degree, since consent can only operate as a ground of justification in respect of certain crimes, and then only under certain circumstances.

The idea that consent may render an act not unlawful is sometimes expressed in the Latin maxim volenti non fit iniuria. Freely translated these words mean ``no wrongdoing is committed in respect of somebody who has consented (to the act concerned)''.

Requirements for a valid plea of consent

In those crimes in which consent may operate as a ground of justification, the consent

must comply with certain requirements in order to be valid, that is in order to afford X a defence. We now consider these requirements.

We first summarise the requirements for this ground of justification in the following framework:

The consent must be

(1) given voluntarily

(2) given by a person who has certain minimum mental abilities

(3) based upon knowledge of the true and material facts

(4) given either expressly or tacitly

(5) given before the commission of the act (consent given later/afterwards does not render the act lawful)

(6) given by the complainant him or herself

OFFICIAL CAPACITY

An act which would otherwise be unlawful is justified if X, by virtue of her holding a public office, is authorised to perform the act, provided the act is performed in the course of the exercise of her duties.

•To physically grab another without her consent amounts to assault. Nevertheless X does not commit assault in the following circumstances, despite the fact that she has grabbed Y: X is a police official. Y has committed an offence in X's presence. X attempts to arrest Y for the commission of the offence. Y resists arrest and runs away from X. X runs after Y and succeeds in getting hold of herby diving her to the ground.

 

CULPABILITY AND CRIMINAL CAPACITY

The mere fact that a person has committed an act which complies with the definitional elements and which is unlawful is not yet sufficient to render him criminally liable. One very important general requirement remains to be satisfied:

X's conduct must be accompanied by culpability. This means, broadly speaking, that there must be grounds upon which, in the eyes of the law, he can be reproached or blamed for his conduct. This will be the case if he has committed the unlawful act in a blameworthy state of mind.

 

Culpability and unlawfulness

Whether culpability is present need be asked only after the unlawfulness of the

act has been established. It would be nonsensical to attach blame to lawful

conduct. The unlawfulness of the act is determined by criteria which are

applicable to everybody in society, whether rich or poor, clever or stupid, young

or old. This is the reason why it is just as unlawful for somebody who is poor to

steal as for somebody who is rich, and why it is just as unlawful for psychopaths

who find it very difficult to control their sexual desires, to commit sexual offences

as for normal people. Criteria employed to ascertain the unlawfulness of an act do

not refer to the personal characteristics of the perpetrator.

vHowever, when one comes to the question of culpability, the picture changes: the

focus now shifts to the perpetrator as an individual, and the question one asks is

whether this particular person, considering his personal characteristics,

aptitudes, gifts, shortcomings and mental abilities, as well as his knowledge,

can be blamed for his commission of the unlawful act.

culpability = criminal capacity + either intention

  or negligence

Criminal capacity and forms of culpability

Before it can be said that a person acted with culpability, it must be clear that such a person was endowed with criminal capacity. The term ``criminal capacity'‘ refers to the mental ability. This will become clearer in the discussion of criminal capacity which follows. We shall see that mentally ill persons and young children, for example, lack criminal capacity. Before X can be blamed for his conduct, he must at least have the mental capacities described above.

X can only be blamed for his conduct if the law could have expected him to avoid or shun the unlawful act or not to proceed with it. Thus, for instance, the legal order cannot blame a mentally-ill (``insane'') person or a six-year-old child who has committed an unlawful act, for that act, since they cannot be expected to act lawfully. Neither can X's conduct be described as blameworthy in a case such as the following: On leaving a gathering, X takes a coat, which he genuinely believes to be his own, from the row of pegs in the entrance hall of the building. The coat in fact belongs to Y, although it is identical to X's. But for the requirement of culpability, X would be guilty of theft. In the circumstances, X is unaware that his conduct is unlawful.

 

The principle of contemporaneity

The culpability and the unlawful act must be contemporaneous. This means that,

in order for a crime to have been committed, there must have been culpability on

the part of X at the very moment when the unlawful act was committed. No crime

is committed if culpability only existed prior to the commission of the unlawful

act, but not at the moment the act was committed, or if it came into being only

after the commission of the unlawful act.

To illustrate this by a fictitious example: X wishes to shoot his mortal enemy Y.

On the way to the place where the murder is to be committed, X accidentally runs

down and kills a pedestrian. It turns out that, unbeknown to X, the pedestrian

was in fact Y. In these circumstances, although there is undoubtedly a causal

connection between X's act and Y's death, X could not be convicted of murdering

Y. At the time of the accident X lacked the necessary intention to kill.

Masilela 1968 (2) SA 558 (A)

 

 

CRIMINAL CAPACITY

Definition

The term ``criminal capacity'' refers to the mental abilities or capacities which a person must have in order to act with culpability and to incur criminal liability. A person is endowed with criminal capacity if he has the mental ability to

(1) appreciate the wrongfulness of his act or omission, and

(2) act in accordance with such an appreciation of the wrongfulness of his act or omission

 

Two psychological legs of test

1.Ability to appreciate wrongfulness (cognitive- ability to differentiate)

2.Ability to act in accordance with such appreciation (conative-power to resist)