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The Law on Intoxication in South Africa

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 Mthokozisi Ndhlovu- The Defence of Voluntary
Intoxication

Intoxication: From Cold Logic to the

technical flaws of Statutory Justice

The first part of this essay will discuss the common law, with specific regard to case law prior
to 1981. The second part will look at the Chretien case along with the judgment that issued
and its implications for criminal law. The last part will then assess sections of the Criminal
Law Amendment Act and its problems. The general purpose of this essay is to point out the
strengths (if any) and weaknesses of the common law defence of voluntary intoxication in
light of the Criminal Amendment Act. An informed opinion will then be stated and it will be
shown that there are more weaknesses than there are strengths. The two concepts that this
paper will be premised on are the ‘Unyielding Approach’ and the ‘Lenient Approach’. I will
define them below.

The Common Law: Case Law prior to 1981

Criminal law is that part of national law that defines certain forms of human conduct as
crimes and provides for the punishment of those individuals who with criminal capacity and
with a guilty mind commit a crime.1 Intoxication may affect those crime elements mentioned
above or mitigate punishment or sentence.2 The school of thought more in accord with this
understanding is the Lenient Approach whose central tenet is that the application of the
ordinary rules of criminal law will lead to the exclusion of certain crime elements or the
mitigation of punishment because of intoxication .3 It is in direct contradiction with the
Unyielding Approach which holds that the community will not accept a situation where a
sober person is punished for a crime, while an intoxicated person, who commits the same
crime escapes criminal liability simply because they were intoxicated.4

The court in S v Johnson stated that to permit drunkenness to be used as a defence would
lead to a state of affairs repugnant to the community.5 In support of this was a survey
concerning voluntary intoxication as a defence, which was conducted some four years prior
to the judgment in Chretien.6 Of those who participated, about 89% of them were of the
opinion that voluntary intoxication should not be a defence.7

Initially, intoxication, as a general rule was not a defence at all.8 The court in R v Bourke

1
Jonathan Burchell Principles of Criminal Law 4ed (2014) 3.
2
Snyman Criminal Law 6ed (2014) 216.
3
Ibid at 219.
4
Ibid.
5
S v Johnson 1969 (1) SA 201 (A) at p207A.
6
S v Chretien 1981 (1) SA 1097 (A) 1981 (1) SA. This case rejected the specific intent theory, which gave
balance to the tension between policy and principle and had been observed for over two millenniums by the
courts under the common law. The court in Chretien stated that voluntary intoxication could be used as a
complete defence and so principle, the so-called scientific theory, was favoured over policy.
7
CR Snyman ‘The tension between legal theory and policy considerations in the general principles of criminal
law’ in Jonathan Burchell and Adele Erasmus (eds) Criminal Justice in a New Society: Essays in Honour of
Solly Leeman (2003) 8.
8
R v Bourke 1916 TPD 303 at p304.
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 Mthokozisi Ndhlovu- The Defence of Voluntary
Intoxication

stated that intoxication only serves to mitigate punishment in sentencing.9 In R v Fowlie, the
court stated that an individual who committed a crime, requiring special intention, in an
intoxicated state may be convicted of a less serious crime than the one that the accused had
initially been charged with.10 The accused, in his defence, averred that his intoxication served
to remove any intention in him on a charge of malicious injury to property.11 The court stated
that special intention was absent because intoxication had deprived the accused of will and
reason.12 Thus because of intoxication, the accused’s sentence was reduced from one year
with hard labour to three months with hard labour.13

Thus proceeding from the Fowlie case, the courts applied what was called the specific intent
theory.14 An ordinary intent was required in lieu of the special intent, in addition to mens rea,
for the crime.15 I proceed to deal below with when this theory was rejected, for what reasons
and what the consequences of that were.

The Chretien Judgment

The Lenient Approach’s views eventually manifested in the Chretien judgment in 1981.
Briefly, the accused in Chretien had consumed a considerable amount of alcohol at a social
gathering.16 After the party broke up, the accused got into his car and drove among a crowd
of people, injuring five, and killing one.17 The ratio in Chretien was that intoxication could,
in extreme circumstances, render the accused not to have acted voluntarily;18 that the accused
would have no criminal capacity if the act was voluntary19 and lastly that if capacity and
voluntariness of conduct were present, intention would be lacking.20 However, if all the crime
elements were present, then intoxication will not serve as a defence and the accused must be
convicted, but that the sentence be mitigated.21 The court arrived at this conclusion because it
had rejected the specific intent theory, stating that intention was still required for ordinary
intent.22 And so if this intention, even under ordinary intent was lacking, then intoxication
could serve as a complete defence.23

However, the judgment in Chretien was wrong because crimes are not only based on
intention, but that application of the reasonable person test could reveal that the accused was
negligent.24 Also intoxication should not be an automatic defence because the State must
establish that the substance taken did affect the accused’s capacity and that it could be found
that certain crime elements did exist during intoxication.25 Lastly intoxication will not always

9
Ibid at 307.
10
R v Fowlie 1906 TS 505 at p508.
11
Ibid at 507.
12
Ibid at 508.
13
Ibid at 511.
14
Op cit note 1 at 304.
15
Op cit note 2 at 219.
16
Supra note 6 at p1097 at p1102D.
17
Ibid.
18
Ibid at 1104E-F.
19
Ibid at 1106A-C.
20
Ibid at 1103H and 1104A.
21
Op cit note 2 at 221.
22
Supra note 6 at p1103H.
23
Op cit note 21.
24
Op cit note 2 at 222.
25
Ibid at 223.
2
 Mthokozisi Ndhlovu- The Defence of Voluntary
Intoxication

mitigate punishment.26 On the contrary, it may increase it, based on the actio libera in causa
principle.27 For example, an individual who consumes an intoxicant simply, to gain courage
to commit a crime, will be punished heavily, under application of the actio libera in causa
principle.28 I now elaborate on the response to the judgment in Chretien below.

The Criminal Law Amendment Act

In 1988 the legislature attempted to give flesh to the sentiments of the public, which generally
reflected the school of thought belonging to the Unyielding Approach. There was fear that
intoxicated persons who committed violent crimes might easily escape conviction due to the
simple application of criminal law principles based on the extra-ordinary statement in
Chretien that intoxication could be a complete defence.29 However, the Act was expressed in
a technically erroneous and flawed manner and in its present state, requires legislative
intervention.30 The line of argument for the Unyielding Approach behind the enactment of the
Act is that an intoxicated person voluntarily induces this state31 (thus the crime element must
exist outside the intoxicated state or prior to it…even section 1(1) states that “…while
knowing that such substance has that effect…”,32 emphasis on ‘while knowing’) and so, the
accused must be held criminally responsible for crimes of violence which he commits under
intoxication.33 The Act thus creates a separate crime from the one initially charged,34 and
sentencing is identically similar to the initial charge.35 The Act consists of two sections, but
only the first will be critically assessed:
1(1) “Any person who consumes or uses any substance which impairs his or her faculties to
appreciate the wrongfulness of his or her acts or to act in accordance with that appreciation,
while knowing that such substance has that effect, and who while such faculties are thus
impaired commits any act prohibited by law under any penalty, but is not criminally liable
because his or her faculties were impaired as aforesaid, shall be guilty of an offence and
shall be liable on conviction to the penalty which may be imposed in respect of the
commission of that act.”36 The elements of the section are detailed below.

a) Consumption of substance impairing one’s mental faculties

The accused must have consumed a substance that impairs his mental faculties to be able to
draw a distinction between right and wrong and to be able to conduct himself with such
appreciation for the distinction.37 Obviously, the State bears the burden of proving beyond a
reasonable doubt that the accused had criminal capacity, intention and was acting voluntarily

26
Ibid.
27
Ibid at 218.
28
Ibid.
29
Andrew Paizes ‘Intoxication through the looking-glass’ (1988) 105 SALJ 776 at 777.
30
Note that De Chermont has suggested a redraft for the Act that deals with all of its issues. Note 1 at 315.
31
Op cit note 29.
32
Section 1(1) of ‘the Criminal Law Amendment Act 1 of 1988’.
33
Ibid note 29 at 778. Interestingly, the court in Chretien held that S v Johnson evoked the versari in re illicita
principle, which was abolished in 1950 along with the aberatio ictus. The Criminal Law Amendment Act seems
to do the same because the accused is punished for all unintended crimes flowing from the prohibited activity,
that of being intoxicated. However, under the Act, the accused is not convicted of crimes which he commits
under intoxication, but is convicted of contravening the section. However, the argument is somewhat weak
because these very crimes which are the basis for the initial charge are still reflected in the sentence for the
separate crime.
34
Op cit note 2 at 225-226.
35
S v Lange 1990 (1) SACR 199 (W) p200C.
36
Supra note 32.
37
Ibid.
3
 Mthokozisi Ndhlovu- The Defence of Voluntary
Intoxication

when he engaged in criminal conduct.38 The accused will then have an evidentiary burden to
disprove the State’s prima facie case that the he had criminal capacity.39

b) Flemming J’s criticism- ‘unproved acquittal’ and non-liability

The first problem with the above section is as follows. Section 1(1) of the Criminal Law
Amendment Act says that the accused is not liable because his mental faculties were
impaired. In order to secure a conviction under the section, the State has to fail to discharge
its burden of proving beyond reasonable doubt that the accused had criminal capacity and so,
acquit him of the initial charge.40 Now this becomes problematic. Consider the following
example: an intoxicated A consumes a large amount of alcohol which serves to deprive him
of mentioned crime elements and gets into a quarrel with B, killing him. In casu, the State has
to prove that he had criminal capacity in order to convict him of the initial charge. The
question is, should the Prosecution attempt to prove beyond reasonable doubt the existence of
all relevant crime elements or must it deliberately fail to prove them and adopt a volte-face in
order to secure a conviction under the section? As already mentioned in the seventh
paragraph, intoxication will not always automatically exclude crime elements.41 The
Prosecution must discharge of its onus and during this process, could find that indeed, certain
crime elements, such as capacity, were present.42

The State has the burden of proving all the crime elements, and the courts must not simply
acquit an accused to find liability for contravening ss1.43 Thus should the words ‘not liable’
be interpreted to mean that there is reasonable doubt that the accused had criminal capacity,
then a conviction on s 1 (1) will not be sufficient.44 This is because conviction for
contravention of ss 1 is based on intoxication, which leads to absence of criminal capacity, as
evidenced by the State, which ss 2 requires.45 However, if the accused is not criminally liable,
this means that the State must acquit him, after having proved that he was not liable, which
would be very taxing.46 Things get interesting here. If the State has acquitted the accused
because there was reasonable doubt that he had criminal capacity because there is not enough
evidence to convince the court, then the accused cannot be convicted under the section. This
also creates more problems and difficulty if the court should require a higher standard of
proof to convince it that the accused lacked criminal capacity.47

Therefore it could be found that the extent of the accused’s drunkenness was scaled between
the grey area of ‘very drunk’ and ‘slightly drunk’. Thus if this is the case, he cannot be found
to have had capacity under the initial charge (which must be mentioned in court in order to
inform subsequent courts of the original crime48 in review and also for the accused that if his
sentence is suspended, he be aware so that he does not commit the same crime again)49 or to

38
Supra note 32.
39
Op cit note 1 at 20.
40
Ibid at 311.
41
Op cit note 2 at 223.
42
Ibid.
43
S v September 1996 (1) SACR 325 A at p326A and 328A.
44
S v Mbele 1991 (1) SA 307 (W) at p311D.
45
Op cit note 29.
46
Ibid at 781.
47
Op cit note 2 At 229
48
Supra note 44 at p310B.
49
Op cit note 1 at 313 to 314.
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 Mthokozisi Ndhlovu- The Defence of Voluntary
Intoxication

have lacked it under section 1(1).50 Therefore it is possible that he could entirely escape
criminal liability both under the common law and the section.51
Therefore, because of the wording or the technical flaws of section 1(1), the Prosecution will
find itself between ‘two stools’, either the Prosecution acquits the accused of the initial
charge, or they prove beyond reasonable doubt that he lacked criminal capacity.52 This
technical problem would have been dealt with had the Legislature used the words ‘not
convicted’, in lieu of ‘not criminally liable’.53

c) Knowledge that substance will impair one’s mental faculties

The second problem is as follows. The accused, at the time of consumption of the intoxicant,
must have had knowledge that it would impair his faculties.54 The accused need not know
that his faculties will be impaired,55 but must only foresee that this could happen of which
dolus eventualis would be sufficient.56 However is it desirable that the Act require that the
public know the section so as to guard against overindulgence in alcohol? As is the case in
South Africa, strict knowledge of law on the layperson is not a requirement as genuine
ignorance is accepted.57 Therefore an accused could raise the defence excluding knowledge
of unlawfulness.58

d) ‘Any act’ and the section’s silence on voluntary and involuntary intoxication
The public is only concerned with acts of violence committed by intoxicated wrongdoers and
not ‘any act’.59 Thus it is desirable that the section’s ambit be limited to violent acts only.
Acts of less consequence on social order, like fraud are of little concern to the public.60
Fourthly, the section does not make a distinction between an individual who voluntarily
consumes an intoxicant, and one who has consumed it involuntarily.61 This would mean that
those who consumed it involuntarily would also be punished.62 However, the courts could
interpret the section to refer to voluntary intoxication.63 The Act also focuses only on positive
acts.64 There is no mention of omissions.65 However, acts of violence mentioned above are
usually positive conduct.

50
Op cit note 46.
51
Samantha Jordaan ‘Intoxication as a multiple defence’ (Article) at 1 last accessed from
http://www.legalcity.net/Index.cfm?fuseaction=magazine.article&ArticleID=5395148 on 5 August 2015.
52
Op cit note 2 at 228.
53
Op cit note 1 at 311.
54
Supra note 35 at p202E.
55
Op cit note 2 at 227.
56
Ibid.
57
Op cit note 1 at 57.
58
Supra note 44 at p310G.
59
Op cit note 29 at 778.
60
Ibid.
61
Op cit note 1 at 309 to 310.
62
Ibid.
63
Op cit 29 at 784.
64
Ibid at 778. Although Paizes is accurate that attempts (under murder in that example) are not covered by the
section, he limits the prohibited conduct, in his example- to killing Y. Surely firing an arm in public space is not
an attempt, but an actual prohibited conduct and has the potential for violence in the sense that someone can be
shot. Thus convicting X under the section would not be absurd on its own because the appropriate sentence for
firing a gun in public would be appealed to. What the section is trying to prevent is for X to merely escape
punishment simply because he was intoxicated.
65
Op cit note 1 at 311.
5
 Mthokozisi Ndhlovu- The Defence of Voluntary
Intoxication

In light of the above problems in section 1(1), I am thus of the opinion that there are more
weaknesses than there are strengths. This paper dealt with the tension between the Unyielding
Approach and the Lenient Approach regarding the defence of voluntary intoxication.
Although the Unyielding Approach prevailed in statute, its legislative expression is
technically erroneous as shown in this essay. As stated in the eighth paragraph, further
legislative intervention is imperative in order to solve the critical problem of non-liability
inter alia. The Chretien judgment left a gap as it made it easy for intoxicated wrongdoers to
be acquitted. The Act does not really fill this gap as it has attempted to do and does not
change anything since intoxicated wrongdoers can still escape criminal liability. Hence the
Legislature should amend the Act, reflecting De Chermont’s suggestions for a redraft. And
within this time interval, cases might present themselves to the courts where there is that
potential that an accused could escape the weakened clutches of both the common law and
under the Criminal Law Amendment Act.

6
 Mthokozisi Ndhlovu- The Defence of Voluntary
Intoxication

Bibliography

Legislation
Criminal Law Amendment Act 1 of 1988

Case Law
R v Bourke 1916 TPD 303
R v Fowlie 1906 TS 505
S v Chretien 1981 (1) SA 1097 (A)
S v Engelbrecht 1966 (1) SA 210 (C)
S v Johnson 1969 (1) SA 201 (A)
S v Lange 1990 (1) SACR 199 (W)
S v Mbele 1991 (1) SA 307 (W)
S v September 1996 (1) SACR 325 (A)

Books
CR Snyman Criminal Law 6ed (2014)
CR Snyman ‘The tension between legal theory and policy considerations in the general
principles of criminal law’ in Jonathan Burchell and Adele Erasmus (eds) Criminal Justice in
a New Society: Essays in Honour of Solly Leeman (2003)
Jonathan Burchell Principles of Criminal Law 4ed (2014)

Journal Articles
Andrew Paizes ‘Intoxication through the looking-glass’ (1988) 105 SALJ 776

Internet sources
Samantha Jordaan ‘Intoxication as a multiple defence’ (Article) at 1 last accessed from
http://www.legalcity.net/Index.cfm?fuseaction=magazine.article&ArticleID=5395148 on 5
August 2015

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