YOUTH

ACTIVITY

X, a 13-year-old girl, has no home. Every day, she stands on a corner of a street next to the robot, begging for money. Her eighteen-year-old friend, Y, tells her that she is wasting her time; she should rather resort to crime. She also tells her that she can come and stay at her home if she would be prepared to rob the drivers of motor cars of their cell phones. X decides that she has had enough of begging. The next day, she smashes a car window at the robot and grabs the car-owner's cell phone. She is caught and charged with robbery. Consider X's chances of succeeding with the defence that she lacked criminal capacity at the time of the commission of the offence.

FEEDBACK

X may argue that she lacked criminal capacity on the grounds of her age. Children between the ages of seven and fourteen are rebuttably presumed to lack criminal capacity. However, the closer the child comes to the age of fourteen years, the weaker the presumption that she lacked criminal capacity. In other words, the older the child, the slimmer the chances of success with this defence. It may never-The less be argued that because X had been influenced by her older friend, she had lacked the ability to resist the temptation to commit a criminal act.

 This refers to the second leg of the test for criminal capacity, namely that the child must have had the capacity to act in accordance with her appreciation of right and wrong. However, as there was no compulsion or an order from an older person (such as a parent) to commit a crime, and since X is already near the age of fourteen, it is unlikely that X would succeed with this argument. Look at the case law discussed in this regard in the prescribed book.

SUMMARY

Mental illness

(1) The test to determine whether X may succeed with the defence of mental illness

(2) The test to determine whether X may succeed with the defence of mental illness is set out in a statutory provision, namely section 78(1) of the Criminal Procedure Act.

(3) The abovementioned test comprises a pathological leg (which refers to a pathological disease which X must have) and a psychological leg (which refers to X's cognitive and conative functions)

(4) The onus of proving the defence of mental illness rests on the party raising the defence.

(5) If this defence succeeds, X is found not guilty, but the court may order that X be detained in an institution or a psychiatric hospital or prison.

Youth

(6) There is an irrebuttable presumption that a child who has not yet completed his or her seventh year of life, lacks criminal capacity.

(7) There is a rebuttable presumption that a child between the ages of seven and 14 years lacks criminal capacity.

(8) The test to determine whether a child between the ages of seven and 14years has criminal capacity, is the same as the general test for criminal capacity.

Intention I

THE TWO ELEMENTS OF INTENTION

Intention, in whatever form, consists of two elements, namely a cognitive and a conative element.

The cognitive element consists in X's knowledge or awareness of

• the act (or - which is the same thing - the nature of the act)

•the existence of the definitional elements

•the unlawfulness of the act

The conative element consists in X's directing his will towards a certain act or result: X decides to accomplish in practice what he has previously only pictured to himself in his imagination. This decision to act transforms what had until then merely been ``day-dreaming'', ``wishing'' or ``hoping'' into intention. In legal literature intention is also known as dolus.

DEFINITION OF INTENTION

A person acts or causes a result intentionally if

•he wills the act or result

•in the knowledge

üof what he is doing (ie the act)

ü that the act and circumstances surrounding it accord with the definitional elements, and

üthat it is unlawful

Defined even more concisely, one can say that intention is to know and to will an act or a result.

THE DIFFERENT FORMS OF INTENTION

Direct intention (dolus directus)

Definition

A person acts with direct intention if the causing of the forbidden result is his aim or goal.

Example

X wants to kill Y. X takes his revolver, presses it against Y's head and pulls the trigger. The shot goes off and strikes Y in the head. Y dies instantly.

Remark!!!!

Note that the reason why the person performs the act or causes the result is

irrelevant. In the example above it therefore makes no difference whether X kills Y because he hates him, or because Y is dying of a terminal illness and X wishes to relieve him of the pain he is experiencing.

Indirect intention (dolus indirectus)

Definition

A person acts with indirect intention if the causing of the forbidden result is not his main aim or goal, but he realises that, in achieving his main aim, his conduct will necessarily cause the result in question.

Example

(1) X shoots through a closed glass window at a target. His main purpose is to hit the target, but he realises that by doing this he must necessarily also shatter the window. If he decides nevertheless to act to attain his main

purpose, he naturally also wills those consequences which he realises must

invariably accompany his main purpose. If he shoots at the target and

shatters the window, he cannot be heard to say that he never intended to shatter the window.

 

(2) X's merchandise is insured and is stored in Y's building. To obtain the insurance money, X sets the merchandise on fire, fully realising that the building itself must of necessity catch alight. When this happens, the building burns down. X may be charged with arson because he had the intention to set the building on fire -Kewelram 1922 AD 213.

Remark

This form of intention is present when a person visualises what he wants to achieve, realises that, in order to achieve it, something else will necessarily be caused, but nevertheless proceeds with his conduct.