The Battered Woman and South African Law
2. Introduction
2.4 Non-pathological incapacity .1 Introduction
2.4.2 Development of the defence of non-pathological incapacity
Since the decision in S v Chretien,300 a new approach to provocation has been followed.
The question now asked is whether provocation (that is, the accused’s angry response) could exclude the basic “elements” of liability - in the same way as intoxication can. In this case the Appellate Division dealt with the decision in S v Johnson.301 The court held that the latter case was incorrectly decided due to its policy-driven conviction of
294Rumpff Commission Report supra (n 288) at par 9.33.
295Hoctor supra (n 242) at 118; Snyman supra (n 287) at 2.
296Rumpff Commission Report supra (n 288).
297Ibid at par 9.19.
298It should be noted that a distinction needs to be made between voluntary conduct and criminal capacity, and between criminal capacity and fault. In respect of the voluntary conduct and criminal capacity distinction see R v Mkize 1959 (2) SA 260 (N) at 265E-F; S v Mahlinza supra (n 289) at 414H-415A. In respect of the distinction between criminal capacity and fault see Van der Merwe’s summary of the positions in “Toerekeningsvatbaarheid v ‘Specific Intent’ - die Chretien-beslissings”
(1981) Obiter 142 at 148.
299Rumpff Commission Report supra (n 288) at par 9.19, discussed in Hoctor supra (n 242) at 118.
300S v Chretien supra (n 97).
3011969 (1) SA 201 (A).
the accused. This was despite a finding that the accused did not know what he was doing. For this reason the court held that the decision was “juridically impure”.302 The court went on to note that the specific intent doctrine was contrary to the precepts of South African law.303
The court went on to apply a principled approach to the issue of voluntary intoxication, namely that intoxication could exclude liability by negating various elements of liability. These include the requirement that the act must be voluntary;304 the accused had the necessary criminal capacity at the time of acting,305 and the requirement of fault in the form of intention (for crimes requiring intent).306
In S v Van Vuuren 307 the question whether provocation could exclude basic “elements”
of liability, in the same way intoxication can was addressed. In this case the judge also made a broader statement in respect of what is meant by provocation:
“I am prepared to accept that an accused should not be held criminally responsible for an unlawful act where failure to comprehend what he is doing, is not attributed to drink alone, but to a combination of drink and other factors such as provocation and severe mental or emotional stress. In principle there is no reason for limiting the enquiry to the case to where a man is too drunk to know what he is doing. Other factors which may contribute towards the conclusion that he
302S v Chretien supra (n 97) at 1103D, discussed in Hoctor supra (n 242) at 120.
303S v Chretien supra (n 97) at 1104A.
304S v Chretien supra (n 97) 1104E-F; 1106E-F.
305S v Chretien supra (n 97) 1104; 1106F-G.
306Hoctor supra (n 242) 121. It is important to note that the court qualified its wholesale acceptance of the principled approach to liability by qualifying his judgment. Rumpff CJ held that such an approach necessarily excluded those accused who made use of alcohol to commit the crime (at 1105G-H). The judge went on to note that any problem in adopting the principled approach lay more in the application as opposed to the legal principle (at 1105H).
307S v Van Vuuren supra (n 26).
failed to realize what was happening or to appreciate the unlawfulness of his act must obviously be taken into account in assessing criminal liability”. 308
In S v Lesch 309 the traditional approach to provocation was expanded to include not only the loss of self-control caused by provocative words or conduct but also some emotional disturbances such as emotional stress. Although the accused was convicted of murder, it is important to note that the court adopted the same approach as in Chretien:310 establishing the existence of the elements of voluntary conduct, criminal capacity and intention.311 Furthermore, the court was of the view that provocation, far from eliminating the intention to kill, actually contributed to the forming of such intent.312
In S v Arnold 313 strong authority was laid down for the viewpoint that emotional factors could lead to an acquittal as a result of provocation. Arnold suffered from severe emotional stress to such an extent that when he shot his wife:
308Ibid at 17G-H, per Diemont AJA.
3091983 (1) SA 814 (O).
310S v Chretien supra (n 97).
311S v Lesch supra (n 309) at 825F-826A (per Hattingh AJ), discussed in Hoctor supra (n 242) at 123.
312Hoctor supra (n 242) at 123, citing S v Lesch supra (n 309) 826A. See further 823G-824B where the terminology of the Rumpff Commission report (specifically para’s 9.30, 9.32 and 9.33) are referred to in discussing the notion of criminal capacity.
3131985 (3) SA 256 (C). In this case the accused was charged with killing his twenty-one year old wife.
Prior to the day of the killing the accused had been subjected to a good deal of emotional stress. One of his sons from a previous marriage suffered from a serious hearing disability and because his second wife (the deceased) developed a hostile attitude to the boy, the accused had to place the child in a special home. The accused was very attached to the boy. The deceased’s mother had moved in with the couple and she suffered from a hysterical condition. The relationship between the accused and the deceased was strained. Now and again she left the house to stay somewhere else but he managed to encourage her to return. On the day in question the accused had just taken his disabled son to the home after arguing with the deceased. Returning his son to the home was a traumatic event for the accused. On his arrival at this house, he encountered his wife. He had a pistol in his possession which he claimed he needed because his job involved handling large sums of money and sometimes his work took him into areas where there had been riots. When he encountered his wife on his return, he claimed that she was so positioned in the room that he was unable to put the gun in a secure place. He held the gun in his hand and during their discussions he hit it against the Couch to emphasize a point. The accused was upset because his wife did not tell him where she was staying and what work she was doing. During their conversation the gun went off, the bullet going in the
“…[H]is conscious mind was so flooded by emotions that it interfered with his capacity to appreciate what was right or wrong and, because of his emotional state, he may have lost the capacity to exercise control over his actions”. 314
The court was of the opinion that:
“…it is not only youth, mental disorder, or intoxication which could lead to a state of criminal incapacity, but also incapacity caused by other factors such as extreme emotional stress”.315
At variance with this outcome was the fact that while the court accepted that it was reasonably possible that the accused was lacking capacity at the time of the death of his wife,316 the court had prior to this found it reasonably possible that the accused was acting in a state of sane automatism at the time of the shooting.317 Although the court was aware of the need to be cautious of accepting that the accused lacked capacity,318 the judge was of the view that due to the most unusual facts of the case, the killing “was at variance with the whole conduct of the accused both before and after” were indicative of uncontrolled conduct. In other words the accused had been acting in a state of automatism.319
opposite direction to where the deceased was standing. The accused admitted that he could not recollect reloading the pistol, but also conceded that he must have done so. Apparently the deceased then bent forward “displaying her bare breasts” and referred to her desire to return to her work as a stripper. The second shot was fired and the deceased was struck and killed. The court noted that this was obviously an act of provocation on the part of the deceased (at 261).
314S v Arnold supra (n 313) 263C-D (per Burger J).
315S v Arnold supra (n 313) 264C-D.
316S v Arnold supra (n 313) 264D.
317S v Arnold supra (n 313) 263G-H. It should be noted that psychiatric testimony was led on behalf of the accused, to the effect that at the time of the shooting the accused’s mind was so flooded with emotions that he may have acted subconsciously or may have lost the capacity to exercise control over his actions (at 263C-E). Thus both the voluntariness of the accused’s conduct and his capacity were placed in issue.
318S v Arnold supra (n 313) 264G-H.
319Hoctor supra (n 242) at 123, citing S v Arnold supra (n 313) 264E-F.
S v Campher 320 confirmed the principle in Arnold.321 The majority of the court accepted a general test for criminal capacity in South African law – a test wide enough to include provocation as a complete defence. In this case the three judges all delivered differing judgments resulting in separate majority findings on the facts and on the law.
The accused’s case was rendered more complicated due to the fact that her counsel in the court a quo failed to raise the possibility that her conative capacity may have been lacking at the time of the killing, and further by the failure by defence counsel to adduce any expert psychiatric evidence. Two of the three judges agreed that the defence of incapacity is not limited to section 78 of the Criminal Procedure Act. 322 Jacobs JA held that in terms of the recommendations of the Rumpff Commission,323 section 78 of
3201987 (1) SA 940 (A). In this case the deceased (husband) of the accused had assaulted her and mocked her religion, forced her to send her children from a previous marriage to live with her former husband, forced her to clean his pigeon coops, on occasion compelled her to use the toilet outside the house at night, compelled her to arm herself with a firearm and investigate noises at his pigeon coops at night, and often insisted that she sit at his bedside throughout the night to protect him against evil spirits. On the day of the attack the accused had started the day in an exhausted state. The deceased had forced her to stay awake at his bedside throughout the night, to ward off the spirits he believed endangered him. He started the day in a characteristically bad mood; he quarreled offensively with all and sundry. He busied himself fitting a bolt-lock to his pigeon coop. The accused had to help him by holding a metal fitting while he bored a hole in the wooden door frame. She was in an extremely uncomfortable position and did not hold the fitting as requested; as a result the hole was not drilled straight and the screw intended for it would not fit. This enraged the deceased, who threatened the accused with a screwdriver. She fled to their house, but he followed her and prevented her from locking him out, she armed herself with a pistol. The deceased was too enraged to be deterred by this. He forced her back to the pigeon coop. She went there still armed with the pistol. There the deceased berated her on her knees to pray for the hole to become straight. The accused then shot the deceased.
321S v Arnold supra (n 313).
322According to Viljoen JA, the decision in S v Chretien supra (n 97) opened the door to the recognition of a defence of non-imputability even where the non-imputability stemmed from a temporary mental aberration. Viljoen adopted the view that the accused had laboured under an impulse which she could not resist, namely to destroy the “monster” (husband) that was threatening her (at 958I). As a result, she had been unable to act in accordance with a distinction between right and wrong, and was thus not imputable at the time of the fatal incident (at 960D-E). It is important that Viljoen JA was prepared to make this finding despite the fact that no expert evidence regarding the accused’s mental condition when she killed the deceased had been led. Viljoen concluded that, since the accused’s condition did not stem from a “mental illness or mental defect” she was to be acquitted without being declared a State President’s patient in terms of section 78 (6) of the Criminal Procedure Act (S v Campher supra (n 320) at 958). Viljoen JA also noted that the enquiry into capacity was a separate enquiry to that into intention, and must therefore precede it. Only once the accused has been found to have capacity would the court be required to assess intention (at 955C-F) Boshoff AJA shared the view adopted by Viljoen JA that a defence of non-imputability is not restricted to conditions stemming from a mental illness or defect, but includes cases where an accused suffers from a temporary mental aberration as a result of fear or emotional stress (at 965H-966B).
323Act 51 of 1977.
the Criminal Procedure Act was so worded as to provide for criteria for the determination of the criminal accountability of someone who suffers from a “mental illness” or a “mental defect”.324
Ferreira notes that the fact that the application of section 78 has been so restricted does not mean that the criteria which have developed in the South African law and have now been embodied in the section cannot be applied to temporary impairment of person’s mental state. The principle of criminal accountability ought to apply regardless of whether the mental disorder or the change in the emotional condition was caused by liquor or severe emotional stress.325 As Ferreira goes on to note, “the different mental conditions should not be compartmentalized; a general principle should be followed by applying the criteria for accountability irrespective of whether the accused’s aberration was of a temporary or permanent nature”.326
The recognized psychological characteristics of criminal capacity were set out in S v Laubscher:327
324Hoctor supra (n 242) 124. Jacobs JA noted that since the accused’s defence counsel had failed to lead psychiatric evidence and had failed to properly plead lack of capacity, it was impossible to determine if the accused lacked capacity at the relevant time (at 960D-E). He regarded the accused’s defence as one of “irresistible impulse”. He argued that such a defence only exists within the provisions of section 78 (1) of the Criminal Procedure Act and concluded that, since the accused had not suffered from a mental illness or defect and since this was not the case, (at 960E-962B) the conviction of murder was to be upheld (at 963H-I).
325Ferreira Premenstrual Syndrome and Criminal Justice (1994) LLM 175.
326Ibid. Du Plessis in “The extension of the ambit of ontoerekeningsvatbaarheid to the defence of provocation - a strafregwetenskaplike development of doubtful practical value” (1987) South African Law Journal 539 at 545 states that the Campher supra (n 320) decision can be criticized on the ground that, although the appeal was dismissed by a majority of the court (Boshoff AJA and Jacobs JA), a majority (Viljoen JA and Boshoff AJA) adopted the view that a general defence of non-imputability exists in our law outside the provisions of section 78 (1) of the Criminal Procedure Act. The ultimate decision is thus not based upon a majority view of the law.
327S v Laubscher supra (n 68).
“To be criminally liable, the perpetrator must at the time of the commission of the alleged offence have criminal capacity.
Criminal capacity is a prerequisite for criminal liability. The principle of criminal capacity is an independent subdivision of the doctrine of mens rea... .To be criminally accountable, a perpetrator’s mental faculties must be such that he is legally to blame for his conduct. The recognized psychological characteristics of criminal capacity are: (1): the ability to distinguish between the wrongfulness or otherwise of his conduct. In other words, he has the capacity to appreciate that his conduct is unlawful. (2) The capacity to act in accordance with the above appreciation in that he has the power to refrain from acting unlawfully; in other words, that he had the ability to exercise free choice as to whether to act lawfully or unlawfully. If either one of these psychological characteristics is lacking, the perpetrator lacks criminal capacity, [for example] where he does not have the insight to appreciate the wrongfulness of his act. By the same token, the perpetrator lacks criminal capacity where his mental powers are such that he does not have the capacity for self-control.” 328
In S v Laubscher 329 a distinction was drawn between statutory criminal incapacity 330 and non-pathological criminal incapacity of a temporary nature. The latter can be a result of non-pathological condition that is not attributable to a mental illness or mental defect in the form of a pathological condition that is not attributable to a mental illness or mental defect in the form of a pathological disturbance of the conscious mind. The court held that it was not necessary to specify the condition which could lead to non- pathological criminal incapacity.331
328Ibid at 166D-167A (own translation). Ferreira supra (n 325) at 173-174 notes that consequently any factor, such as fear would be legally relevant if it led to the disruption of the cognitive and/or conative functions of the conscious mind. In this respect see S v Bailey 1982 (3) SA 772 (A) at 796C: “It is possible that the accused could be so afraid that he is not able to foresee the consequences of his actions, or that what he is doing is unlawful. In certain instances, he can in fact lack criminal capacity”.
329S v Laubscher supra (n 68).
330In terms of section 78(1) of the Criminal Procedure Act 51 of 1977. See also S v Calitz 1990 (1) SACR 119 (A) where the court recognized the existence of a general test for criminal capacity, despite the fact that the defence did not succeed in this case.
331Ferreira supra (n 325) 175. Cf Bergenthuin “Die algemene toerekeningsvatbaarheidsmaatstaf” (1985) De Jure 273 where the author has noted that it is unnecessary to define a “numerus clausus” of biological grounds which could lead to a lack of criminal capacity.
The issue of emotional stress constituting a complete defence was again considered in S v Smith 332 and S v Wiid. 333 In Smith 334 it was held that:
“I assume for the present purposes that what was described as an ‘emotional storm’ or ‘emotional flooding of the mind’ can result in loss of criminal capacity, that is that such an emotional disturbance could result in a person being, in the words of section 78, incapable of appreciating the wrongfulness of her act or of acting in accordance with appreciation of such.” 335
As a result, provocation or severe emotional distress may deprive an individual of the capacity to appreciate the wrongfulness of her conduct or to act in accordance with this appreciation, and for this reason it appears to constitute a complete defence to criminal liability.336
After the decision in S v Wiid 337 it is clearly established that a general test for criminal capacity is finally accepted in South African law. Not only was the defence of non-
332S v Smith supra (n 68).
3331990 (1) SACR 561 (A).
334S v Smith supra (n 68).
335Ibid at 134J-135A, discussed in Ferreira supra (n 325) at 175.
336Ferreira supra (n 325) 175.Cf Burchell and Milton supra (n 26) 239.
337S v Wiid supra (n 333). In this case at 563F-J, the dictum in Laubscher supra (n 68) at 166F-167A was cited as a statement of the law relating to the defence of non-pathological incapacity in the only case in which the Appellate Division/Supreme Court of Appeal has upheld the defence. In this case the accused, who killed her abusive husband, was acquitted on the basis that she lacked criminal capacity as a result of the abuse that she had suffered. However, in this case, just before shooting her husband several times, the accused had been seriously assaulted by him, and there was some evidence compatible with the conclusion that she might have been concussed. But see further chapter 5 at 295-296 discussing the possibility that this case was wrongly decided. If this criticism of Wiid supra (n 333) is correct, then it limits the number of cases where the accused could successfully rely on the defence and for this reason it could be said that the existence of the defence borders on the theoretical. Cf S v Potgieter 1994 (1) SACR 61 (A) where Kumleben JA emphasized the need to subject the evidence adduced by the appellant in support of the defence of non-pathological incapacity with circumspection (citing S v Kensley 1995 (1) SACR 646 (A) at 658j; S v Van der Sandt 1998 (2) SACR 627 (W) at 636B-C); and that such a defence must be subjected to careful scrutiny by the courts (citing S v Goitsemang 1997 (1) SACR 99 (O) at 103I-104A; S v Gesualdo