Practical examples:

SU 6: Culpability
Dolus eventualis:
X wants to burn down a building. He foresees the possibility that somebody
(Y) may be inside it, but nevertheless decides to proceed with his plan, not
caring whether Y is in the building or not. He sets fire to the building. Y is
indeed inside the building and dies in the flames.

❖ A person acts with intention in the form of dolus eventualis if the commission
of the unlawful act or the causing of the unlawful result is not his main aim,
but:
❖ (a) he subjectively foresees the possibility that, in striving towards his main
aim, the unlawful act may be committed, or the unlawful result may be
caused, and
❖ (b) he reconciles himself to this possibility.

Dolus directus:
X, having a grudge against Y with whom his wife has fallen in love, awaits Y
at Y’s home and upon his arrival, shoots Y through the heart in order to kill
him.

➢ Direct intention comprises a person’s directing his will towards achieving the
prohibited result or towards performing the prohibited act. This result or act is
his goal. He desires the act or result.

Dolus indirectus:
X is sitting in his neighbour’s (Y’s) house. From inside the house, he wants to
shoot a bird which is outside. He realises that his shot will of necessity shatter
Y’s windowpane. Although he is not anxious to bring about this result, he
nevertheless decides to go ahead, aims at the bird and shoots the
windowpane to pieces.

 In indirect intention the prohibited act or result is not X’s goal, but he realizes
that if he wants to achieve his goal, the prohibited act or result will of
necessity materialize.
MISTAKE EXCLUDES INTENTION:
E.G. X is hunting buck. In the dusk he sees a figure which he thinks is a buck,
and shoots at it. It turns out to be a human being whom he has killed. He is
then not guilty of murder, since a requirement for murder is that it must be a
human being who has been killed: X had the intention of killing, not a human
being, but a buck. He was mistaken in respect of one of the definitional
elements of the crime of murder, namely the requirement that the victim
must be a human being.

o Not every wrong impression of facts qualifies as a mistake excluding intention

and therefore affording X a defence.
o Only a mistake relating to the act, the definitional elements and the
unlawfulness may exclude intention (Material)
o Need not be reasonable.
o Error in objecto? R v Rantsane
o Aberratio ictus(The going astray of the blow) – R v Koza
o Chain of causation

SU7: Causation
Scenarios:
1) Titus stabbed Albi with a knife on his chest, Albi bled to death on the spot.
Who caused the death of Albi? (Titus)
2) Titus stabbed Albi with a knife on his chest, the ambulance arrived on time at
the scene to drive Albi to the hospital. On their way to the hospital, a truck
collided with the ambulance and Albi died whilst the paramedics were
severely injured.
Who/what was the cause of Albi’s death?
The main question regarding causation is whether there was a causal link
between Titus’s conduct and the death of Albi.
3) Stork is very poor. He persuades his uncle, who is very rich and whose heir
he (Stork) is, to go on an aeroplane trip, hoping that the aeroplane will crash
and that Rama will be killed. Rama undertakes the aeroplane trip. The
aeroplane crashes and Rama is killed in the accident. Is Stork’s act the
cause of Rama’s death? (Look at the link of causation

To determine causation/liability
❖ To determine whether/not the person is liable for the harm/death
(
caused, one needs to look at factual & legal causation. S v Daniels)
 ❖ Both factual & legal causation need to be present.
❖ Firstly, factual causation will be determined.
• This entails that all relevant facts and circumstances must be
investigated.
• The conditio sine qua non theory is used to determine whether
there is a factual cause.
• What would have happened if Titus’s conduct had not taken place?
• Would Albi have still died?
• If the answer is no, one can be sure that the conduct of Titus is a
factual cause to Albis’s death.
• If the answer is yes, one can be sure that the conduct is not a
factual cause.
❖ Secondly, after determining factual causation, legal causation needs to be
determined.
• This entails policy considerations.
• Ask the question: whether it would be reasonable and fair to regard X’s
act as the cause of Y’s death?
• In order to determine the question, the court makes use of one or
more specific theories of legal causation. Among these theories are:
a) Proximate cause:
-This theory of legal causation states that one must search for only
one individual condition as the legal cause of the prohibited
situation.

b) Adequate causation:
-This theory provides that an act is a legal cause of a situation if,
according to human experience, in the normal course of events, the
act has the tendency to bring about that type of situation.

-In order to determine whether there is an “adequate relationship”

between the act and the result, all factual circumstances
ascertainable by a sensible person should be taken into
consideration.

c) Novus actus interveniens:

-Novus actus interveniens: “A new intervening act”, a negative test for
causation.
-In S v Grotjohn the court held that a latter event can be deemed to
have broken the causal link only if it is a completely independent act,
having nothing to do with and bearing no relationship to a person’s
act.
 -An event can be novus actus interveniens only if it is an unexpected,
abnormal or unusual event.

-With reference to the Titus and Albi scenario on slide 2, the truck
colliding with the ambulance would be “a new intervening act” causing
the death of Albi. Titus’s act of stabbing Albi would just be a factual
cause of the death of Albi.

-S v Tembani
-S v Daniels

❖ As seen in the Daniels & Mokgethi case the court are not bound by these
theories. They look at the facts of each case.
❖ Go back to the question: whether it would be reasonable and fair to regard
X’s act as the cause of Y’s death?
• Yes: Legal causation.
• No: Not legal causation.
❖ If factual & legal causation isn’t present, there’s no causation.

4) The accused's wife was paralyzed and manic-depressive. One day, during an
argument, she asked the accused to hand her the gun he had with him and
threatened to shoot herself. The accused proceeded to load the gun and told
her to shoot herself if she wanted, because she was just a burden. The
deceased then shot and killed herself and the accused was subsequently
charged with murder.
➢ Grotjohn case (scenario)
➢ Gordon case

SU 8: Participation
Scenarios:

1) A, B and C is busy robbing ABSA bank in the mall. They fled through the door
after each of them obtained a bag full of money. The security officers gave chase,
and a shoot-out occurs. During the shoot-out one security officer and A was killed. B
fled via the main entrance and C ran into Edgars where he held Z, one of the
shoppers, hostage with his gun. Y, someone who happened to be in the mall, gave
chase to C. Y is armed. C ordered Y to put down his gun, but Y fired a shot killing Z,
the hostage. C then dropped his gun and surrendered.
What kind of participants are B, C and Y, if any?
B- Co-perpetrator.
C- Co-perpetrator.
Y- Perpetrator.

2) Oneply, Twoply and Threeply are best friends. They are furious because
their employer, Twinsaver, is busy designing a fourply. They want to
confront Twinsaver and decide to go to his house where they threw stones
and bricks at it. The brick that Threeply has thrown, hit Twinsaver on the
head. Twinsaver dies on the scene.
Who is criminally liable for the death of Twinsaver? Motivate your answer
by referring to relevant case law.
❖ Make use of 1st: Theory, 2nd: Argument & 3rd: Give reasons for your
argument.
❖ Identify the charge? In the above scenario it would be murder.
❖ To have culpability for murder you need intention.
❖ Intention consists of 2 functions, namely:
1) Cognitive (knowledge of unlawfulness): Distinguish between right and
wrong.
2) Conative (will): To act in accordance with this distinction.
❖ Intention makes use of a subjective test which entails that the court places
itself in the shoes of the accused.
❖ This means that the court looks at the accused’s surrounding circumstances
as well as what the accused experienced.
❖ In murder there is no such thing as an accomplice as it is (not in the
definition of murder & due to the doctrine of common purpose.
❖ There is indeed something like a co-perpetrator due to the doctrine of
common purpose.
❖ The doctrine of common purpose entails that where two or more people
associate together to commit a crime, each one of them will be liable for the
criminal conduct of the other(s) that falls within the scope of their common
purpose. They will be regarded as co-perpetrators. Liability arises from their
common purpose to commit the crime.
❖ In the case of S v Safatsa
• A crowd of about one hundred people attacked Y, who was in his house,
by pelting the house with stones, hurling petrol bombs through the
windows, catching him as he was fleeing from his burning house, stoning
him, pouring petrol over him and setting him alight.
• The six appellants formed part of the crowd.
 • The court found that their conduct consisted inter alia of grabbing hold of
Y, wrestling with him, throwing stones at him, exhorting the crowd to kill
him, forming part of the crowd which attacked him, making petrol bombs,
disarming him and setting his house alight.
❖ The principles of common purpose as discussed in the case of S V
Safatsa
• 2/more people work together to commit a crime. There conduct is
imputed. What you did, I did.
• Conduct & result imputed (Throwing a stone that kills a person)
• If one of the members conduct differs, the conduct can’t be imputed
unless group foresaw the possibility of the of the result occurring (1
member goes rogue, group foresaw this)
• To prove common purpose, it isn’t dependant on prior conspiracy (riot
example)
• The person should’ve actively associated themselves with the conduct
for common purpose.
• The death of the person can be imputed, negligence can’t (Example:
After a party, 5 people drive in a car, Jason is the driver. Driver drives
over a red light which causes a motor vehicle accident, the other driver
dies. Only Jason will be charged with culpable homicide.

❖ It was argued on behalf of the accused that they could be convicted only if a
causal connection had been proved between everyone’s conduct and the
death.
❖ The Appellate Division found that where common purpose to kill had been
proved, each accused should be convicted of murder without proof of a
causal connection between each one’s individual conduct and death.
❖ The six appellant’s convictions of murder were confirmed.
❖ This judgement effectively excludes the possibility of being convicted as an
accomplice to murder when acting in a group and being party to a common
purpose to kill.
❖ In the given scenario One play, two play & three play actively associated
themselves with the conduct therefore acting in common purpose. They also
had intention.
❖ It can be concluded that all 3 of them will be criminally liable for the death of
Twin saver.