4.2 The Definitional Elements - Unisa Study Notes



Study Unit 4 (CRW2601) – The Definitional Elements and Causation4.2 The Definitional ElementsCriminal Law 71-94Meaning: Description of the requirements for liability for a specific crime.Definitional elements allow both an ordinary person and the courts to know which requirements apply to a certain crime.Formula: Whoever does X commits a crime (X is the definitional elements).Definitional elements contain:Description of the kind of act (e.g. possession, penetration)Description of the circumstances in which the act must take place (e.g. forcibly)Characteristics of the person committing the act (person who owes allegiance – in treason)Nature of the object (e.g. dagga)A particular place (e.g. on a yellow line)Time it took place (e.g. on a Sunday)Don’t confuse “the definitional elements“, with “the definition of the crime”. Definition of the crime includes the definitional elements as well as the requirements of unlawfulness and culpability. 4.3 CausationCriminal law 79-94; case book 33-604.3.1 The difference between formally- and materially-defined crimes2 groups of crimes according to definitional elements.Group 1 – formally-defined crimes: definitional elements forbid a certain type of conduct (commission or omission) irrespective of what the result of the conduct is. (E.g. perjury, possession of illegal drugs)Group 2 (result crimes) – materially-defined crimes: definitional elements: do NOT forbid a specific conduct, but rather any conduct that causes a specific condition. (E.g. murder, arson)4.3.2 The issue of causationMaterially defined crimes – always a question of a causal link (nexus) between conduct and prohibited result. Did the act precipitate the death?Makali 1950 (1) SA 340 (N); Hartmann 1975 (3) 532 (C) 5344.3.3 The principles to be applied in determining causationBasic Principle 2 requirements must be met:It must be clear that X’s act was the factual cause of Y’s deathIt must be clear that X’s act was the legal cause of Y’s deathThere is factual causation if it is a sine qua non. But for X’s action Y would not be dead.There is legal causation if in terms of policy considerations, it is deemed reasonable and fair that X’s act was the cause of Y’s death.Causal link = factual causation + legal causationFactual causation – contitio sine qua nonBut for the occurrence of the act (or event) the prohibited condition would not have happened.An act of condition sine qua non for a situation if the act cannot be thought away without the situation disappearing at the same time.Examples in case law of condition sine qua non: makali 1950 (1) SA 340 (N); Mokoena 1979 (1) PH H 13 (A); and Minsiter van Polisie v Skosanna 1977 (1) SA 31 (A) 44MOST NB!! In Daniels 1983 (3) SA 275 (A), the Appeal court decided that factual causation is determined on the basis of the sconditio sine qua non theory.Legal causation – generalBecause of wide scope of factual causation that legal causation is needed.Certain specific tests to determine legal causation:Proximate causeAdequate causeNovus actus interviensCourts are reluctant to use one of the 3 tests in all cases, instead they pick the one which they interpret to be most useful.Sometimes they can base a finding of legal causation on other considerations.Theories of legal causationIndividualisation theories: we must look among all the factors that qualify as factual causes for the one that s most proximate.Objection to this approach: 2 or more conditions may operate in equal measure.Today this test (proximate cause) finds little support.Daniels 1983 (3) SA 275 (A) – majority of appeal court judges refused to accept causation by proximation.Theory of adequate causation (generalisation theory)Causal relationship based on generalisation made by an “ordinary person”. Would a normal person find a causal relationship between an action and a result?Definition: 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 kind of a situation.Test: It normally comes of doing such a thing.This test was applied in Loubser 1953 (2) PH H190 (W).Novus actus interviens“New intervening event”An event that breaks the chain of causation. Our case law contains no precise description of the requirements with which an act must comply to qualify as a novus actus interviens (or nova causa).An act can never be a novus actus interviens if X previously knew or foresaw that it might occur.4.3.4 The Courts’ approach to legal causationCourts do NOT single out a specific theory as the only correct one.In Daniels and Mokgethi the appellate division stated: in deciding whether the factual cause is also the legal cause, it must be guided by policy consideration.Policy: a conclusion that would not exceed the limits of what is reasonable, fair and just.In deciding this a court may make use of one or more of the theories. (In most cases they apply 1) A court may even base legal causation on considerations outside of these theories. Diagram pg 55.4.3.7 Examples from decisionsAssisted suicide – Grotjohn 1970 (2) SA 355 (A)X encouraged Y to commit suicide, or provided him with the means to kill himself.Last act was Y’s conscious, voluntary act. Is there a causal link between X’s actions and Y’s death?Story: X provided his wife with a loaded shotgun so she could kill herself.X was acquitted.Upon appeal it was decided that X was not completely innocent, and that Y’s realisation of the purpose X had in mind can never be regarded as a Novus actus (Hibbert 1979 (4) SA 717 (D)).The Daniels DecisionX shot Y in the back with a revolver – Y did not die instantly.He would have died if he had not received medical attention within 30 minutes.Z appeared and shot Y in the ear. X and Z and had previously agreed to kill Y. They acted independently of each other. Z’s shot was not the immediate cause of death, but there was a causal link. Did X also cause Y’s death?First 2 judges held that it WAS also the legal cause of death. Conditio sine qua non – if Z had not shot Y, then Z would not have had the opportunity to shoot Y. X’s act was the factual cause of death.No policy consideration which exonerated X. Z’s shot was not a novus actus interviens.3rd judge (minority) held that X’s shots had not been the cause of death. The 3rd judge said it WAS a novus actus interviens.Mokgethi decisionCase book: Mokgetghi 1990 (1) SA 32 (A)X shot Y in the back, Y became a paraplegic, confined to a wheelchair.Y died six months later from septicaemia from sores from being in a wheelchair.Court held that the shooting was a factual cause, but not a legal cause.None of the theories could be applied (or tested) satisfactorily. Y’s own unreasonable failure had been the immediate cause of his death. X’s shooting had been too remote.X found guilty of only attempted murder.Negligent medical treatment – Tembani decisionCase book: Tembani 2007(1) SACR 355 (SCA)X had been convicted of murder. He had been found to have shot Y twice with the intention of killing him.Y was admitted to hospital with serious injuries she contracted an infection and died in hospital due to negligence at the hospital. Court found X’s act to be the factual cause.More importantly the court had to determine if it was the legal cause.Was negligent medical care a novus actus interviens.Court held that deliberate infliction of a dangerous wound that needed medical care, or the victim would die made X liable. It was irrelevant whether the wound was readily treatable, and even whether medical treatment given was negligent or substandard.Only if Y had recovered to such an extent that her life was no longer in danger could the infection be conspired and intervening act. Their approach was justified on 2 policy confirmations:An X who deliberately inflicted such a wound must embrace that there is a risk of death (the fact that other might intervene does not diminish culpability)In a country where medical resources are scarce this situation is neither abnormal nor extraordinary. 4.3.8 Causation: a summaryThe rules to be applied in determining causation:In order to fi nd that there is a causal link between X’s act and Y’s death, X’s act must fi rst be the factual cause and, secondly, the legal cause of Y’s death.X’s act is the factual cause of Y’s death if it is a conditio sine qua non of Y’s death, that is, if X’s act cannot be thought away without Y’s death (the prohibited result) disappearing at the same time.X’s act is the legal cause of Y’s death if a court is of the view that there are policy considerations for regarding X’s act as the cause of Y’s death. By “policy considerations”, we mean considerations that would ensure that it would be reasonable and fair to regard X’s act as the cause of Y’s death.In order to find that it would be reasonable and fair to regard X’s act as the cause of Y’s death, a court may invoke the aid of one or more specific theories of legal causation. These theories are the individualisation theories (e.g. proximate cause), the theory of adequate causation and the novus actus interveniens theory. These theories are merely aids in deciding whether there is legal causation. The courts do not deem any one of these theories to be the only correct theory to be applied in every situation. A court may even base a finding of legal causation on considerations outside these specific theories. ................
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