S v Eadie (196/2001) [2002] ZASCA 24 (27 March 2002)

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[2002] ZASCA 24
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S v Eadie (196/2001) [2002] ZASCA 24; 2002 (3) SA 719 (SCA); 2002 (1) SACR 663 (SCA) (27 March 2002)

THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case
no: 196/2001
In
the matter between:
GRAEME
MICHAEL EADIE
APPELLANT
and
THE
STATE
RESPONDENT
___________________________________________________________________
Coram
:
Olivier,
Streicher and Navsa JJA
Date
of hearing:
19 February 2002
Date
of delivery:
27 March 2002
Summary: Defence of non-pathological criminal
incapacity due to a combination of emotional stress provocation and
intoxication –
not distinct from sane automatism – test for
non-pathological criminal incapacity – factors to be considered in
evaluating veracity
of defence.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
NAVSA
JA:
[1]
During
the very early hours of the morning of Saturday 12 June 1999 on Ou
Kaapseweg near Fish Hoek, the appellant assaulted Kevin
Andrew Duncan
(“the deceased”) and beat him to death in circumstances described
in popular language as road rage. The appellant
stood trial in the
Cape Provincial Division of the High Court, before Griesel J, on a
charge of murder and on a charge of obstructing
the ends of justice.
In respect of the second charge it was alleged that after the
commission of the murder the appellant disposed
of a hockey stick
which he used in the attack on the deceased so that it could not be
found by the police, and further, that he attempted
to mislead the
police by falsely showing them a pair of jeans other than the blood
splattered pair he was wearing at the relevant
time. The appellant
admitted that he assaulted and killed the deceased. His defence was
one of temporary non-pathological criminal
incapacity resulting from
a combination of severe emotional stress, provocation and a measure
of intoxication, thus placing in dispute
that at the material time he
could distinguish between right and wrong and that he could act in
accordance with that distinction.
The appellant’s defence was
rejected and he was convicted on both charges. On the murder charge
the appellant was sentenced to
fifteen-years' imprisonment, five
years of which were conditionally suspended. On the charge of
obstructing the ends of justice
the appellant was sentenced to
imprisonment for 9 months. It was ordered that this sentence
run concurrently with the sentence
imposed in respect of his
conviction on the murder charge. The judgment of the Court below is
reported as
S v Eadie (1)
2001(1) SACR 172(C)
. The
appellant appeals, with the leave of the Court below, against his
conviction on the charge of murder. The primary issue in
this appeal
is whether the appellant lacked criminal capacity at the time that he
killed the deceased. Before us it was conceded
on behalf of the
appellant that at the relevant time he was able to distinguish
between right and wrong. It was contested that he
was able to act in
accordance with that appreciation. It was submitted, before us, in
the alternative, (in the event of a finding
that the appellant did
not lack criminal capacity), that the State failed to prove beyond
reasonable doubt that the appellant had
dolus
in either the
form of
dolus directus
or
dolus eventualis
and that it
should be found that a proper verdict in the totality of the
circumstances of the case is one of culpable homicide.
[2]
It
is well established that when an accused person raises a defence of
temporary non-pathological criminal incapacity, the State
bears the
onus
to prove that he or she had criminal capacity at the
relevant time. It has repeatedly been stated by this Court that:
(i) in discharging the
onus
the
State is assisted by the natural inference that in the absence of
exceptional circumstances a sane person who engages in conduct
which
would ordinarily give rise to criminal liability, does so consciously
and voluntarily;
(ii) an accused person who raises such a defence is
required to lay a foundation for it, sufficient at least to create a
reasonable
doubt on the point;
(iii) evidence in support of such a defence must be
carefully scrutinised;
(iv) it is for the Court to decide the question of the
accused’s criminal capacity, having regard to the expert evidence
and all
the facts of the case, including the nature of the accused’s
actions during the relevant period.
S
v Calitz
1990 (1) SACR 119
(A)
at
126 h- 127 c;
S v
Wiid
1990 (1) SACR 561
(A)
at
564 b – g;
S v
Potgieter
1994 (1) SACR 61
(A)
at
72 j – 73 h;
S v
Cunningham
1996 (1) SACR 631
(A)
at
635 i - 636 c;
S v
Francis
1999
(1) SACR 650
(SCA)
at
652 c – h
.
[3]
I
will in due course deal with the test for criminal capacity as laid
down in this Court and with contributions by academic writers.
In
the course of this judgment I will consider whether the boundaries of
the defence in question have been inappropriately extended,
particularly in decisions of Provincial or Local Divisions of the
High Court, so as to negatively affect public confidence in the
administration of justice.
[4]
At
this stage it is necessary to consider the facts of the present case
and the basis on which the Court below reached its conclusions.
It
is not disputed that at the time of the attack on the deceased the
appellant was subjected to a number of stressors. He was
experiencing financial difficulties, problems at work, tensions in
his marriage and was in a depressed state. The events that led
to
the death of the deceased and the surrounding circumstances are
largely common cause. There is a dispute about the manner in
which
the assault was perpetrated, which is dealt with in the summary that
follows.
[5]
The
appellant, presently 37 years old, is a keen sportsman and a
competitive hockey player. On Friday 11 June 1999, accompanied
by
his wife, he attended a function of the Fish Hoek Hockey club held at
the Holiday Inn in Woodstock, Cape Town. During the course
of the
night he consumed at least seven bottles of beer. After the function
the appellant and his wife joined another couple for
a late meal at a
restaurant in Rondebosch, where he consumed at least two more bottles
of beer and two Irish Coffees. In the early
hours of Saturday
morning the appellant and his wife drove home in their Volkswagen
Jetta motor vehicle ("the Jetta”), stopping
at his mother’s
house to pick up their two young children. They drove along
OuKaapseweg in a southerly direction towards Fish
Hoek. As they
travelled home with the children asleep on the backseat they became
aware of the headlights of a motor vehicle coming
up behind them.
The deceased was the driver and sole occupant of this vehicle, a
Toyota Corolla ("the Toyota"). He drove
right up to the
Jetta, overtook them, and in the process flashed his headlights,
which were on bright. The deceased then slowed
down considerably.
The appellant remained behind him for a short distance. When the
deceased reduced his speed to approximately
40 kmph the appellant
overtook him. The deceased increased his speed and once again drove
up close to the Jetta’s rear bumper,
keeping his headlights on
bright. The appellant accelerated but could not put distance between
them. The Toyota overtook the Jetta
once more and the process
described earlier was repeated - the deceased slowed down and the
appellant overtook him but could not
get away. The appellant became
angry and concerned about his family’s safety. He stopped the
Jetta at a set of traffic lights
relatively close to his home. The
Toyota stopped behind him. The appellant got out of the Jetta, took
a hockey stick from behind
the driver's seat, and walked towards the
Toyota. At this point the appellant’s wife drove off in the Jetta.
The deceased remained
seated behind the steering wheel of the
stationary Toyota. The appellant initially intended to smash the
Toyota’s headlights.
He changed his mind and decided to smash the
windscreen. When the appellant got close to the Toyota the deceased
opened the driver’s
door, prompting him to divert his attention
from the windscreen and to lunge at the deceased with the hockey
stick, which broke into
two parts as it struck the vehicle. The
appellant became extremely angry. He succeeded in opening the
driver’s door of the Toyota
after it was kicked at him and closed
again by the deceased. The appellant punched the deceased against
the head whilst he was still
in the Toyota and continued the assault
by punching him repeatedly. He pulled the deceased out of the
vehicle and into the road.
The deceased fell. The appellant
repeatedly and savagely stamped on the deceased's head with the heel
of his shoe. The appellant
broke the deceased’s nose by stamping
on it with his heel.
[6]
The
appellant testified that whilst he was assaulting the deceased he
could feel himself shouting but did not hear any sound. He
could see
some things clearly whilst others were blurred. He felt as if he was
in a fish bowl. When he pulled the deceased out
of the Toyota he
felt no weight. In perpetrating the assault he felt that he was

going, going,
going’. He experienced these sensations from the time that the
hockey stick broke. The appellant could nevertheless
recall and
relate what happened in the detail set out above.
[7]
Mr
Graham Hill (“Hill”), a motorist who drove past the scene
witnessed at least part of the attack on the deceased and testified
in support of the State’s case. He supplied a slightly different
version of the assault, testifying that the appellant used the
hockey
stick as a weapon, jabbing it at the deceased whilst he was still
seated in the Toyota.
[8]
The
appellant testified that after he assaulted the deceased he did not
realise where he was. His wife returned to the scene a short
while
after her initial departure and repeatedly called his name without
receiving a response. The appellant eventually heard his
wife call
his name and walked to the Jetta. His wife drove him home in
silence. After the appellant arrived at home he decided
almost
immediately to return to the scene. There was no one else at the
scene. He established that the deceased was dead and unsuccessfully
attempted to dial an emergency number on his cell-phone. Soon
thereafter a tow-truck driven by Mr Jan Eksteen (“Eksteen”)
arrived
at the scene. Eksteen saw that the jeans worn by the
appellant was blood splattered. The appellant told Eksteen that he
was at the
scene attempting to assist the deceased, deliberately
creating the impression that he was an innocent bystander. The
police arrived
a short while later and the appellant repeated his
explanation for being at the scene. He supplied the police with his
personal
particulars and departed, but not before surreptitiously
removing the hockey stick from the scene. He disposed of the stick
by throwing
it into bushes some distance away. Later, he was
requested by the police to return to the scene to point out the
position of the
hockey stick. He was also requested to bring along
with him the blood splattered jeans he had on earlier. He returned
and could
of course not point out where he had left the hockey stick.
He presented the police with jeans different from the pair he wore
at
the time of the assault on the deceased. Eksteen pointed this out
to the police, resulting in the appellant eventually disclosing
the
truth. He was arrested and thereafter gave his full co-operation to
the police. He took the police to the place where he had
disposed of
the broken hockey stick. Only one part of the stick was recovered.
[9]
Blood-alcohol
tests conducted on the appellant, the results of which are
uncontested, revealed that his blood-alcohol level at the
time of the
assault was in the region of 0,15 grams/100 ml. A post-mortem
examination of the deceased revealed that his blood-alcohol
level at
the time of death was 0,17 grams /100ml. Both blood-alcohol levels
are significantly beyond the legal limit. The post-mortem
examination established that the deceased sustained significant
fractures of the facial bones and skull. The deceased died as a
result of these injuries, which, according to Dr Van der Heyde who
conducted the post-mortem examination, were caused by the application
of a considerable degree of blunt force.
[10]
The
appellant sought to persuade the Court below that an incident that
occurred in Johannesburg during 1990 played a part in precipitating
the assault which led to the deceased’s death. I set out a summary
of his version of that incident. The appellant and a friend
who were
in Johannesburg on business, found, upon their return to their
vehicle in a parking lot, that they were parked in by another
motorist. When that motorist eventually arrived he drove off without
an apology. The appellant and his friend drove after the offending
motorist to seek an explanation for his behaviour. The other
motorist was unrepentant. There was an exchange of verbal abuse and
offensive gestures. In a sudden twist the other motorist ended up
pursuing the appellant and his friend, flashing his lights at
them.
The appellant’s vehicle struck the pavement and he was forced to
stop. The other motorist confronted and assaulted the
appellant.
Within a short while other vehicles and people surrounded the
appellant and his friend. One of the persons who arrived
on the
scene was dressed in a police uniform. The others appeared to be
policemen in civilian dress. The appellant was assaulted
by the
policemen and rendered unconscious. He sustained a fractured
cheekbone, a broken nose, a dislocated jaw and a number of bruises
and abrasions.
[11]
To
complete the historical background it is necessary to record that
during 1986, after a term of border duty as a national serviceman
in
the army, the appellant suffered a mental breakdown - he held a
firearm to his chin and held people at bay. In consequence he
was
admitted to 1 Military Hospital and was assessed as suffering from an
adjustment disorder with mood and behavioural changes.
Psychometric
testing revealed compulsive traits, poor impulse control and a
potential for destructive behaviour. He received no
treatment to
address this condition and the results of the tests were not conveyed
to him.
[12]
I
turn to deal with the evidence in the Court below, of a psychologist
and two psychiatrists who all conducted interviews with the
appellant
and who were supplied with the background and historical details set
out earlier in this judgment. Mr Stephen Lay (“Lay”),
a
psychologist employed at Valkenberg Hospital’s forensic unit,
testified in support of the State’s case. He assessed the
appellant
as someone who bottled up his emotions and who had
personality problems, which gave rise to difficulties in his
employment, family
and other relationships. Lay thought it highly
unlikely that the incident in Hillbrow in 1990 played any part as a
trigger or otherwise
in the appellant’s assault on the deceased.
There were no indications that it resulted in a post- traumatic
stress syndrome in
the appellant. On the contrary, the appellant was
emphatic that in assaulting the deceased he was motivated by anger
and that the
anger was caused by the fact that the deceased had
attempted to run him off the road. Lay accepted that the intake of
alcohol during
the time preceding the assault on the deceased played
some role in the appellant’s conduct.
[13]
Lay
considered it important that the appellant approached the Toyota with
the intention of perpetrating a violent act. His actions
were
rational, purposeful and goal-directed. The appellant had the
“cognitive wherewithal” to realise that the deceased had
fallen
after the first blow and had been rendered unconscious. His
assertions of being disoriented after the assault on the deceased
should be seen against this background. Lay thought it relevant that
the appellant had a full recall of the events in question yet
stated
that he was disoriented after the event and could not hear his wife
calling him. Lay was unwilling to concede that the appellant
had
“lost control” at the time he perpetrated the assault on the
deceased. He stated that this expression which is not a clinical
term is used much too loosely - it is vague and too general. Even
though Lay stated that the question of whether or not the appellant
had criminal capacity at the relevant time was debatable, it is clear
from his evidence as a whole that he held the view that the
appellant
exercised poor impulse control. Lay did not accept that the
appellant lacked criminal capacity when he assaulted and killed
the
deceased.
[14]
Dr
Sean Kaliski (“Kaliski”), a psychiatrist and head of the forensic
psychiatric unit at Valkenberg Hospital also testified in
support of
the State’s case. In his view the appellant was able to appreciate
the wrongfulness of the acts perpetrated by him
and to act
accordingly. It is clear from his evidence that he is sceptical of
the defence in question. In ninety percent of cases
in which he
testified the defence was the same as the one raised in the present
case. In his experience the defence has never been
successfully
established - he conceded that this conclusion was based on an
assumption that courts accepted his view on the validity
of the
defence. Kaliski saw no difference in a defence of sane automatism
and the defence asserted in the present case and went on
to describe
the characteristics of sane automatism. A person who acts in a state
of sane automatism would typically have been subjected
to a great
deal of stress producing a state of internal tension building to a
climax which in most cases is reached after the person
concerned has
endured ongoing humiliation and abuse. The climax is triggered by an
event unusual in its intensity or unpredictable
in its occurrence.
When one acts in this state one’s cognitive functions are absent.
This means that actions are unplanned and
one is unable to appreciate
surrounding events. Acts perpetrated in this state may appear to be
purposeful but should typically
be out of character. When the period
of automatism has passed the person concerned comes to his senses, is
bewildered and horrified
by the results of such actions and lends
assistance to the victim. There would be no concerted effort to
escape from the scene.
Persons acting in this manner usually claim
amnesia.
[15]
Kaliski
commented on the appellant's claim that he lost control over his
physical acts as follows. If the appellant did not know
what he was
doing his actions would have been less goal-directed. He would have
been flailing about indiscriminately and the deceased
would have been
struck by chance. The appellant’s assertion that he "lost
control" must be carefully examined. The
expression itself is
used too loosely. It is common for people to lose their temper and
to commit regrettable acts when they should
have known better. An
example is that of a sportsman who commits a blatant foul in full
view of a referee. The appellant did not
show any signs of a
post-traumatic stress syndrome following on the incident in
Johannesburg in 1990. There were no recurring thoughts,
nightmares
or flashbacks related to that incident supportive of this assertion.
Even though the appellant had in the past not engaged
in acts
involving the degree of violence seen in the attack on the deceased,
he nevertheless had a history of engaging in regrettable
conduct and
acting impulsively. After the attack on the deceased the appellant
did not show signs of true disorientation because
he eventually
responded to his wife’s shouts and found his way to the Jetta. The
appellant and his wife took their children home
before he returned to
the scene. This indicates that he had presence of mind. The
appellant would have been more convincing had
he not made an attempt
to deceive the police. The appellant was subjected to provocation
and other stressors but faced no more than
scores of people who do
not resort to this kind of behaviour. The sensations experienced by
him during and immediately after the
assault are not unusual in
persons who are extremely angry.
[16]
Kaliski
accepted that courts have held that in certain circumstances a
combination of factors such as stress, provocation and the
disinhibiting effects of alcohol may cause a person to lack criminal
capacity. His experience, however, led him to conclude that
temper
and rage disinhibits people but does not rob them of control.
Kaliski stated that he may be willing to concede the validity
of a
defence of non-pathological criminal incapacity due to stress and
provocation in the face of compelling facts.
[17]
Dr
Ashraf Jedaar (“Jedaar”) a psychiatrist employed at Valkenberg
Hospital’s forensic unit from 1992 - 1999 and presently in
private
practice, testified in support of the appellant’s case. In his
view the appellant’s description of the sensations experienced
by
him during the attack on the deceased is indicative of an altered
state of consciousness, referred to in psychiatry as a dissociative
state. It indicated a heightened emotional state, which affected his
cognitive functions and led to an inability to control his
behaviour.
I quote the following part of his evidence:
"So although there was
a perception or at least a recognition that there was an injury
inflicted on the deceased, he was unable
to control the continued
assault on the deceased due to his disturbed cognition."
[18]
Jedaar
considered it important that the appellant was concerned about the
safety of his family. Jedaar was of the view that whilst
the
deceased was pursuing him the appellant re-experienced the event that
took place in Hillbrow during 1990. He took issue with
Kaliski and
stated that a defence of sane automatism differs from the defence
asserted by the appellant, in that a person acting
in a state of sane
automatism has an absolute absence of cognitive control due to
intense emotional arousal whereas the appellant
had intact but
disturbed cognition due to emotional factors. Jedaar was of the view
that the appellant’s purposeful, goal-directed
and
well-co-ordinated behaviour masks the fact that his cognition had
been disturbed.
[19]
The
essence of Jedaar’s conclusions is that given the stressors
operating on the appellant, the effect of the alcohol consumed
by
him, his personality and the provocation by the deceased, he reached
a point where his emotional state was such that his actions
were
involuntary. Jedaar conceded that in this heightened emotional state
the appellant would have been able to make decisions about
what and
whom he wanted to attack. According to Jedaar the appellant lost his
power to make decisions from the time that the hockey
stick broke due
to the perceived threat from the deceased. This was the trigger that
deprived him of the power to make decisions.
Jedaar stated, without
substantiation, that from that moment on the appellant was unable to
change his decision.
[20]
Jedaar
accepted that the success of the appellant's defence depended on the
court's acceptance of his evidence that he was unable
to control his
actions at the relevant time. Jedaar conceded that persons who have
not had their cognitive ability disturbed might
well experience the
sensations experienced by the appellant. He accepted that if a
person was enraged he or she could be concentrating
so heavily on
perpetrating an assault that external stimuli such as being called by
name would be excluded. Jedaar conceded that
in the absence of the
disassociative sensations experienced by the appellant his actions
are consistent with conscious decision making.
He accepted that there
was nothing exceptional about the depression and anxiety experienced
by the appellant. Jedaar expressed the
view that the event that
occurred in Johannesburg in1990 had to be viewed as part of the
totality of circumstances in order to assess
whether the appellant
lacked criminal capacity at the relevant time.
[21]
Counsel
for the state referred Jedaar to his evidence in another case in
which he testified that it is only in the context of mental
illness
that a person can be driven by an irresistible impulse. He attempted
to distinguish his evidence in the present case by
stating that the
appellant was acting with his cognitive faculties intact but
distorted. According to Jedaar the assault flowed
from the
appellant’s heightened emotional state, not from a conscious
decision. However, Jedaar accepted that the appellant’s
detailed
description of the assault perpetrated by him negatives any
suggestion of automatism.
[22]
Griesel
J, at
178 a - b
of the judgment in the Court below, referred
to the “confusion” between the defence of temporary
non-pathological criminal incapacity
and sane automatism. He dealt
with the view adopted by writers like Snyman in
Criminal Law
(
3
rd
ed)
, at
54
,
152
and
153
that sane automatism and temporary non-pathological criminal capacity
are separate and distinct defences. With reference,
inter alia
,
to
S v Francis
,
supra
, at
651 h,
where
Schutz JA equated non-pathological incapacity to sane automatism, the
learned judge concluded that the distinction might be
one without a
difference. Griesel J states the following at
178 b
:
"At the same time, however, it is
clear that in many instances the defences of criminal incapacity and
automatism coincide.
This is so be
c
ause a person who is
deprived of self-control is both incapable of a voluntary act and at
the same time lacks criminal capacity."
[23]
Griesel J
reminded himself that courts have scrutinised the asserted defence
with circumspection and went on to assess the psychiatric
and other
evidence. He considered that the appellant’s behaviour at the
relevant time was focused and goal-directed and took into
account
against the appellant his deceitful behaviour after the incident.
The learned judge formed the view that the appellant’s
blow-by-blow
account of events indicated conscious behaviour. He took into
account that witnesses who saw the appellant at the scene
after the
assault, described him as behaving normally. The learned judge
accepted Hill’s account of the assault and rejected the
appellant’s
to the extent that it conflicted with Hill’s evidence. Griesel J
thought Hill’s version of events was probable
and was corroborated
by the accused’s efforts to get rid of the hockey stick. He formed
the view that neither the Court nor the
psychiatrists could rely on
the appellant's version relating to his defence of criminal
incapacity. He rejected the appellan’s
claim that the stressors
referred to earlier in this judgment contributed to his incapacity at
the relevant time stating (at
183 i
):
"Hundreds of thousands
of people daily find themselves in similar or worse situations, yet
they do not go out clubbing fellow
- motorists to death when their
anger may be provoked."
Griesel
J concluded that the incident that occurred in Johannesburg in 1990
played no part in the attack on the deceased and concluded
that the
appellant did not lose control - he simply lost his temper.
Having rejected the appellant’s defence of criminal
incapacity, the
learned judge considered whether the appellant had the necessary
intention to commit murder. Having regard to the
savage and
sustained nature of the attack on the deceased and that it was
directed at the head of the deceased, he concluded that
the appellant
had the necessary intention to kill.
[24]
Appellant's
counsel submitted that the Court below confused the defence of
automatism and the defence of non-pathological criminal
incapacity
and that Griesel J failed to appreciate that since the appellant was
able to distinguish between right and wrong his cognitive
faculties
were in place and goal-directed behaviour could be expected. It was
contended that the learned judge misdirected himself
when he took
into account, against the appellant, that his behaviour was focused
and goal-directed. It was submitted that he should
have concluded
that the appellant was unable to control himself due to the emotional
stress and provocation he was subjected to.
Reliance was placed on
the following statement in
South African Criminal Law and
Procedure
(2
nd
ed)
,
Vol 1
by
Burchell and Hunt at 274:
"…it does not have to
be shown that the accused's conduct was involuntary in the sense that
it was automatic or purely reflexive,
for then the accused would be
exempt from criminal liability on the ground that his act was not one
of which the criminal law takes
cognizance, and the question of
criminal capacity ("toerekenings­vatbaarheid") does not
arise. The determining factor,
it seems, is the question of self
control – whether, in all the circumstances of the case … the
accused
"could not resist or refrain from this act, or was
unable to control himself to the extent of
refraining from
committing the act…"
(emphasis added)
Counsel for the
appellant also relied on the following decisions of the Provincial
and Local Divisions of the High Court in which,
he submitted, the
defence of non-pathological criminal incapacity was upheld,
notwithstanding that the accused persons conducted
themselves in a
goal-directed manner:
S v Arnold
1985 (3) SA 256
(C)
;
S v Nursingh
1995 (2) SACR 331
(D)
;
S v
Moses
1996 (1) SACR 701
(C)
;
S v Gesualdo
1997 (2) SACR 68
(W)
.
Reliance
was also placed on the minority judgment in a decision of this court
in
S v Campher
1987(1) SA 940 (A)
where, at
956 C
,
the following appears:
"As leek op hierdie
gebied meen ek egter dat die feit dat die appellante na die tyd besef
het dat sy die oorledene geskiet het
die Hof nie verhinder om tot 'n
bevinding te geraak dat die appellante se emosies so 'n breekpunt
bereik het en haar so oorweldig
het dat sy nie op die kritieke
oomblik kon weerstand bied nie."
Appellant's
counsel submitted that the decision of this Court in
S v Wiid
1990 (1) SACR 561
(A)
supported his case.
[25]
There
is a great deal of confusion about the proper application of the test
for criminal capacity. What follows, is an examination
of the
historical development of the asserted defence, a consideration of
relevant judgments of this Court and of the other decisions
referred
to in the preceding paragraph. Thereafter I will refer to criticisms
by academic writers about the manner in which the
test has been
applied.
[26]
In
our law, criminal incapacity due to mental illness is classified as
pathological incapacity. Where it is due to factors such
as
intoxication, provocation and emotional stress it is termed
non-pathological incapacity. The term non-pathological incapacity
was coined for the first time by Joubert JA in
S v Laubscher
1988 (1) SA 163
(A)
at
167 D - I
. As pointed out by
Snyman in
Criminal Law
, supra, at
152
,
Joubert JA wanted to separate this defence from that of mental
illness created by
section 78
of the
Criminal Procedure Act 51 of
1977
. In
S v Chretien
,
1981 (1) SA
1097
(A)
which preceded the
Laubscher
case,
it
was determined by this Court that persons who were so intoxicated
that their acts were merely uncontrolled muscular movements are
not
criminally liable, because their acts are not recognised as such for
purposes of criminal liability and that those who committed
acts
which were more than mere uncontrolled muscular movements but were so
intoxicated so as not to appreciate what they were doing,
or were
unable to appreciate the difference between right and wrong would
lack criminal capacity and would accordingly escape criminal
liability. Reacting to the charge that it would be against the
public interest if courts were to encourage the idea that drunkenness
can be an excuse for crime, Rumpff CJ said the following at
1105 F
– 1106 H
:
"Na my mening is dit
verkiesliker om te aanvaar dat, indien dit uit die getuienis blyk dat
'n beskuldigde werklik so besope was
dat hy inderdaad nie besef het
wat hy gedoen het nie, die publieke beleid (die regsoortuiging van
die gemeenskap) nie vereis dat
van die suiwer regswetenskaplike
benadering afgesien moet word nie en dat die beskuldigde 'n straf
moet ondergaan bloot omdat hy
vrywillig 'n toestand bereik het waarin
hy juridies nie kan handel nie of ontoerekeningsvatbaar is ... Die
probleem lê mi nie
soseer in die beginsel wat toegepas behoort
te word nie maar in die manier waarop die beginsel toegepas word.
Indien 'n hof geredelik of maklik aanvaar dat 'n besope persoon
wat bv 'n vrou verkrag of probeer verkrag nie bewus is van wat hy
doen nie en dus nie toerekeningsvatbaar is nie, en vry behoort uit te
gaan, sou die regspraak baie gou in diskrediet gebring word.
Verminderde toerekeningsvatbaarheid en 'n minder straf is natuurlik
iets anders."
(emphasis added)
[27]
Since
Chretien’s
case the Legislature has intervened
statutorily to deal with intoxication as a defence by way of the
Criminal Law Amendment Act 1
of 1988. It is beyond the scope of this
judgment to examine the changes brought about by statutory
intervention. I consider the
following quotation from
South
African Law and Procedure
Vol 1 (
3
rd
ed)
by
JM Burchell at
188
to be important to bear in mind:
"While
Chretien
cannot be
faulted on grounds of logic or conformity with general principles,
the judgment might well have miscalculated the community's
attitude
to intoxication."
[28]
It
was but a short jump from the acceptance that intoxication could
result in an individual losing the ability to distinguish between
right and wrong and to act in accordance with that distinction, to an
acceptance that emotional stress combined with provocation
or
intoxication or both could excuse criminal liability on the same
basis. Severe emotional stress, in combination with factors
such as
provocation and/or intoxication resulting in non-pathological
criminal incapacity, has become a very popular defence as a
perusal
of the law reports on the subject and a further reading of this
judgment will confirm.
[29]
I
now proceed to deal chronologically and in some detail with decisions
of this Court in which the defence of non-pathological criminal
incapacity was considered. It is necessary, in the quest for greater
clarity and precision, to distill the common threads in these
judgments.
[30]
In
S v van Vuuren
1983 (1) SA12 (A)
Diemont AJA referred
to
Chretien’s
case, and said the following at
17 G
- H
:
"I am prepared to
accept that an accused person should not be held criminally
responsible for an unlawful act where his failure
to comprehend what
he is doing is attributable not to drink alone, but to a combination
of drink and other facts such as provocation
and severe mental or
emotional stress. In principle there is no reason for limiting the
enquiry to the case of the man too drunk
to know what he is doing."
The
appellant in that case shot his ex-wife and her friend, injuring the
former and killing the latter. The shooting took place after
growing
tensions between the appellant and the persons shot by him. Diemont
AJA noted that the appellant’s actions, after he shot
two people
were rational and responsible: he conveyed his daughter to his
parents’ house; he telephoned the police and the ambulance;
he
reported to a policeman that he had shot two women and accompanied
his father back to the house where the shooting took place.
Diemont
AJA took into account that, even though the appellant stated that he
had no knowledge of the actual shooting, he gave the
court a detailed
account of his activities during the evening; before and after the
event. It was held that the trial court was
correct in its
conclusion that the appellant did not lack criminal capacity.
Dealing specifically with the effect of emotional stress
coupled with
provocation and intoxication Diemont AJA said the following at
D -
E
:
"These factors, the
drink, the provocation and the emotional stress all serve to mitigate
his moral turpitude, but I am not persuaded
that they caused such
mental turmoil that the appellant had no understanding or knowledge
of what he was doing. There is evidence,
persuasive evidence, which
supports the State's contention that the appellant not only was fully
aware of his actions but that there
was a measure of premeditation."
[31]
In
S v Campher
1987 (1) SA 940
(A)
the
appellant shot and killed her husband who had repeatedly subjected
her to physical and psychological abuse. In the time immediately
preceding the shooting he had subjected her to further humiliation
and physical abuse. On appeal, the question whether she lacked
criminal capacity at the relevant time was addressed. Viljoen JA
accepting that at the critical moment the appellant was aware of
the
difference between right and wrong said the following (at
956 B
):
"Die vraag is egter of
sy die vermoë gehad het om ooreenkomstig daardie besef op te
tree, met ander woorde die nodige
weerstandskrag
gehad
het. In die huidige geval word die ondersoek gereduseer tot die vraag
of sy onder die geweldige emosionele druk wat sy op daardie
oomblik
beleef het die vermoë gehad het om weerstand te bied teen die
drang om hierdie 'monster' te vernietig."
(emphasis added)
The
learned judge of appeal stated the following (at
958 C
):
"Haar getuienis noop my
tot die gevolgtrekking dat haar gees op die kritieke oomblik erg
versteurd was en dat haar weergawe van
haar gemoedbewegings
bestaanbaar is met 'n
drang
waarteen sy nie kon
weerstand bied nie."
(emphasis added)
In
the view of Viljoen JA the appellant was entitled to an acquittal.
Boshoff AJA was of the view that the appellant had the capacity
to
distinguish between right and wrong and to act accordingly. At
967
C
Boshoff AJA states:
"Trouens, uit haar
getuienis is af te lei dat sy deurgaans die vermoë gehad het om
die ongeoorloofdheid van haar handeling
te besef en dat sy versuim
het om haar wilsbeheer, 'n vermoë waaroor sy subjektief beskik
het, uit te oefen."
Jacobs
JA was of the view that where an accused had the ability to
distinguish between right and wrong, the defence of irresistible
impulse (which he considered to be the basis of the appellant’s
defence) would only be available where a mental illness or defect
was
present. On the facts of the case Jacobs JA and Boshoff AJA
constituted the majority, dismissing the appeal. On the law Boshoff
JA and Viljoen JA formed the majority holding that in principle
emotional stress could lead to an absence of criminal capacity and
an
acquittal.
[32]
S
v Laubscher
1988 (1) SA 163
(A)
is an oft-cited case
on the test for non-pathological criminal capacity based on a
psychological breakdown. In that case a 23-year-old
medical student
whose intelligence level was that of a genius, discharged 21 rounds
of ammunition into various rooms of a house in
which his wife and
parents-in-law resided. In consequence, his father-in-law was
killed. At his trial on charges,
inter alia,
of murder and
attempted murder, it was contended that at the relevant time he had
suffered a total psychological breakdown or disintegration
of his
personality, of a temporary nature, with the effect that he acted
involuntarily. The incident in question was preceded by
verbal
exchanges and a protracted struggle by the appellant to have his wife
and child return to him from her parental home. Joubert
JA states
the following (at
166 G – 167 A
):
"Om toerekeningsvatbaar te wees, moet
'n dader se geestesvermoëns of psigiese gesteldheid sodanig wees
dat hy regtens vir
sy gedrag geblameer kan word. Die erkende
psigologiese kenmerke van
toerekenings­vatbaarheid
is:
1. Die vermoë om tussen reg en
verkeerd te onderskei. Die dader het die
onderskeidingsvermoë
om die regmatigheid of onregmatigheid van sy handeling in te
sien. Met ander woorde, hy het die vermoë om te besef dat hy
wederregtelik
optree.
2. Die vermoë om ooreenkomstig daardie
onderskeidings­vermoë te handel deurdat hy die
weerstandskrag
(wilsbe­heervermoë) het om die
versoeking om wederregtelik te handel, te weerstaan. Met ander
woorde, hy het die vermoë
tot vrye keuse om regmatig of
onregmatig te handel, onderworpe aan sy wil.
Ontbreek een van hierdie twee psigologiese
kenmerke dan is die dader
ontoerekeningsvatbaar
, bv waar hy
nie die onderskeidingsvermoë het om die ongeoorloofheid van sy
handeling te besef nie. Insgelyks is die dader ten
spyte daarvan dat
hy wel die onderskeidingsvermoë het tog ontoerekeningsvatbaar
waar sy geestesvermoë sodanig is dat hy
nie die weerstandskrag
het nie."
For
reasons that will be discussed later in this judgment, it is perhaps
unfortunate that the word “weerstandskrag” was used.
This
follows on the use of the same word by Viljoen JA in
Campher's
case,
supra
. Considering the appellant's conduct
against the aforementioned test, Joubert JA found that although the
appellant’s actions had
been irrational and not in keeping with his
normal personality, he had acted voluntarily as he had powers of
discernment and restraint,
so that he was criminally accountable.
Joubert JA held that the trial court was correct to take into account
the goal-directed and
purposeful acts by the appellant, before and
during the shooting incident, as well as the fact that he managed to
drive away from
the house in his motor vehicle afterwards. The
following is stated at
173 B
:
"Ofskoon die appellant
se optrede irrasioneel was en nie in ooreenstemming met sy gewone
persoonlikheid was nie, het hy wel
willekeurig
opgetree
omdat hy onderskeidingsvermoë en
weerstandskrag
(wilsbeheervermoë)
gehad het sodat hy nie
ontoerekeningsvatbaar was nie maar wel verminderd
toerekeningsvatbaar. Na my oordeel het die Verhoorhof tereg
tot
hierdie bevinding op die bewese feite bo redelike
twyfel geraak."
(emphasis added)
[33]
In
S v Calitz
1990 (1) SACR 119
(A)
the accused, a
sergeant in a counter-insurgency unit in the army, assaulted and beat
a villager in Ovamboland to death. He raised
the defence of
non-pathological criminal incapacity, due to a raging anger that was
said to have arisen because the deceased had
exchanged words with him
after he drove an army vehicle over a pole that had a ritual
significance for the village. The appellant
in that case recalled
details of the event in question. After he killed the deceased he
involved his men in a cover-up operation.
He planted a Libyan
uniform and arms and ammunition in the vicinity of the deceased’s
house. He radioed his base and informed
them that he had killed one
of the enemy. After the deceased's family laid a charge of murder
the appellant admitted killing the
deceased and resorted to the
defence of non-pathological criminal incapacity, due to his anger.
After considering the psychiatric
evidence for the State and on
behalf of the appellant, Botha JA concluded as follows (at
127 g
):
"Volgens die getuienis
van die psigiaters sou 'n mens nie van iemand wat in so 'n toestand
verkeer het, verwag om 'n deurlopende
gedetailleerde relaas van die
gebeure tydens so 'n episode te kan verstrek nie. In die getuienis
van die appellant, is daar egter
'n aansienlike mate van redelike fyn
detail van die verloop van die aanval. Dit is verder voor die hand
liggend, soos dr Fourie
ook getuig het, dat waar iemand normaalweg
baie kwaad is sonder dat hy in sy onbeheerstheid in 'n verstandelike
beneweling verkeer,
hy nie elke fyne besonderheid van die gebeure sal
kan onthou nie. Met dié mate van bewustheid van wat om hom
aangegaan het,
en van sy handeling tydens die aanval, wat die
appellant in sy getuienis kon weergee, was die Verhoorhof, na my
mening, geregtig
gewees om tot die gevolgtrekking te kom dat die
appellant nie in 'n tydelike verstandelike beneweling verkeer het
nie, en dat hy
wel toerekeningsvatbaar was."
[34]
S
v Wiid
1990 (A)
is the only case in this Court in
which the defence of non-pathological criminal incapacity due,
inter
alia
, to emotional stress was upheld on the facts. In that case
the appellant shot and killed her husband. The deceased had been
unfaithful
throughout their marriage. He had assaulted the appellant
on two occasions before the shooting incident. Shortly before the
incident
the appellant discovered that the deceased was conducting
yet another affair. On the day of the incident when the deceased
returned
home she confronted him. He denied the accusation and
shortly thereafter attempted to record their conversation on a tape
recording
machine. She attempted to stop him from doing so and in
the result the machine fell to the ground. The deceased assaulted
the appellant
quite severely, breaking her nose and a tooth, and
splintering other teeth in the process. Her spectacles were broken
and her mouth
was bleeding. After the assault the deceased chased
the appellant out of their bedroom, threatening her with a further
assault.
Shortly thereafter she shot him. After the shooting she
was heard to ask: "Wat het ek gedoen?" A policeman
testified
that when he arrived at the scene she appeared bewildered
and disoriented. The appellant's recollection of the day on which
the
incident occurred was vague and she was unable to recall the
shooting itself. She recalled that the deceased had said he was
going
to kill her. She saw his pistol nearby but could not recall
that she picked it up. She remembered hearing shots. In the time
leading
up to the incident the appellant was in a state of anxiety
and was highly emotional. The psychiatric evidence was to the effect
that given the intake of sedatives and alcohol and lack of eating,
combined with the severe assault and the threat of death, the
appellant may well have lacked criminal capacity altogether and that
she may well not have been able to distinguish between right
and
wrong. The trial court held that it was reasonably possible that the
appellant may have been concussed after the assault and
during the
time that she fired the fatal shot. Goldstone JA said the following
at
569 c – e
:
"Na my mening, indien al die feite in
ag geneem word, bestaan daar redelike twyfel oor die vraag of die
appellante
willekeurig
opgetree het. Dat sy bewustelik
en opsetlik die oorledene wou doodskiet is nie met appellante se
persoonlikheid en karaktertrekke
te versoen nie. Dit is die effek
van haar eie getuienis en word deur Gillmer en Plunkett gestaaf.
Haar oorblywende en steeds sterk
liefde vir die oorledene rym nie met
die doelbewuste doodmaak van die oorledene nie. Die feit dat sy sewe
skote geskiet het, is
aanduidend van onbeheersde optrede."
(emphasis added)
The appeal was upheld
and the appellant acquitted.
[35]
In
S v Kalogoropoulos
1993 (1) SACR 12
(A)
the appellant
was a jealous husband who shot and killed his domestic servant and
his business partner. He also shot and wounded his
wife and his
partner’s wife. He was convicted by the trial court,
inter
alia
, on charges of murder and attempted murder. The appellant
suspected that his wife was having an affair with his business
partner.
After consuming a quantity of alcohol he armed himself with
a revolver and confronted his wife and partner with an accusation
that
they had been intimate that afternoon. They denied it and a
heated altercation ensued. The appellant fired a shot that struck
and
wounded his wife. Thereafter he fired a number of shots in quick
succession, killing his business partner and wounding his partner’s
wife. He then drove home where he opened his safe, armed himself
with a pistol and proceeded to the domestic servant's quarters.
On
his way there he shot and killed a dog. On his arrival at the room
where the servant lived he shot and killed her, saying that
he could
not trust her anymore. The appellant’s defence to the charges was
that owing to the vast quantity of alcohol consumed
by him and the
provocation to which he had been subjected he lacked the necessary
criminal capacity. The appellant’s defence was
rejected and the
appeal dismissed. Botha AJ in rejecting the appeal reasoned as
follows (at
25 h – 26 a
):
"The shooting in the office could not have lasted
for more than a couple of seconds. Immediately before that short
space of
time the appellant was in control of himself; that is not in
doubt. Immediately after it he was again in control of himself; so
Dr Vorster says herself (as I have indicated, for good and compelling
reasons). He then replaces the emptied revolver with a loaded
pistol
and, having just shot three people, proceeds to shoot a fourth. On
the face of his conduct before and after, it seems to
me almost
inconceivable that in the brief interval in between he was deprived
of self-control... The appellant shot Dora (and the
dog) because he
was angry and emotionally upset, but while in a frame of mind where
he could exert self-control."
[36]
In
S v Potgieter
1994 (1) SACR
61
(A)
the
appellant, a 36 year-old woman, admitted that she shot and killed her
lover who had abused her physically and emotionally over
a number of
years. In the trial court she raised a defence of

sane
automatism" and in the alternative, that she was impelled by an
irresistible impulse and that she therefore lacked the legal
capacity
to commit a criminal act. The trial court rejected her defence and
she was found guilty of murder. On appeal, Kumleben
JA equated the
defence raised by the appellant with the defence dealt with in the
Laubscher
,
Calitz
and
Wiid
cases.
At
73 g – i
, Kumleben JA cited the following passage from
Hiemstra’s
Suid Afrikaanse Strafproses
(4de uit)
at
189
with approval:
"Daar moet getuienis
van die kant van die beskuldigde wees wat sterk genoeg is om twyfel
te laat ontstaan oor die
vrywilligheid
van die beweerde
daad of versuim. Dit moet gerugsteun word deur geneeskundige of
ander deskundige getuienis wat aantoon dat die
onwillekeurige
gedraging heel moontlik te wyte was aan oorsake anders as
geestesongesteldheid of geestesgebrek. As aan die einde van die
verhoor
daar twyfel bestaan of die gedraging
willekeurig
was of nie, moet die beskuldigde die voordeel van die twyfel geniet."
(emphasis added)
The
learned judge of appeal also cited Prof CWH Schmidt’s article
Laying the Foundation for a Defence of Sane Automatism
in
the
90 (1973) SALJ 329
at
333
where the learned author
states:
"…the accused has to
adduce evidence from which a reasonable alternative inference can be
drawn' that he acted unconsciously."
Kumleben
JA states the following at
73 j – 74 b
:
"The need for careful scrutiny of such
evidence is rightly stressed. Facts which can be relied upon as
indicating that a person
was acting in a state of
automatism
are often consistent with, in fact the reason for, the commission of
a deliberate, unlawful act. Thus – as one knows – stress,
frustration, fatigue and provocation, for instance, may diminish
self-control to the extent that, colloquially put, a person 'snaps'
and a
conscious
act amounting to a crime results. Similarly,
subsequent manifestations of certain emotions, such as fear, panic,
guilt and shame,
may be present after either a deliberate or an
involuntary
act has been committed."
(emphasis added)
The
Court held that the appellant was an untruthful witness in many
respects and concluded that the factual foundation for the defence
was absent. The court took into account that the appellant's actions
were complex and goal-directed and had difficulty in accepting
that
it could all have been executed automatically. The appellant's
defence was rejected and the appeal against her conviction dismissed.
[37]
In
S v Kensley
1995 (1) SACR 646
(A)
the appellant shot
and killed two people, after he discovered that the objects of his
affections were female impersonators. His defence
was that he lacked
criminal capacity attributable to non-pathological factors, namely, a
combination of severe emotional stress and
intoxication. Van den
Heever JA in dealing with the
onus
resting on the state, to
prove beyond a reasonable doubt not only that an accused could
distinguish between right and wrong but that
he was capable of acting
in accordance with that distinction, after reference to the decisions
in the
Calitz, Campher
and
Wiid
cases,
said the following at
658 g – j
:
"Those decisions cannot possibly mean
that the
ipse dixit
of an accused that in the given situation,
whatever that might be, he was unable to control himself (giving rise
to a theoretical
possibility as postulated by Dr Teggin that
that could be so) must lead to an acquittal. Criminal law for
purposes of conviction
– sentence may well be a different matter –
constitutes a set of norms applicable to sane adult members of
society in general,
not different norms depending upon the
personality of the offender. Then virtue would be punished and
indiscipline rewarded: the
short-tempered man absolved for the lack
of self-control required of his more restrained brother. As a matter
of self-preservation
society expects its members, even when under the
influence of alcohol, to keep their emotions sufficiently in check to
avoid harming
others and the requirement is a realistic one since
experience teaches that people normally do. Compare
s v Swanepoel
1983 (1) SA 434
(A) at 458A – D. It follows that the evidence
on which a defence of sane criminal incapacity due to intense emotion
is based, should
be viewed with circumspection."
The
court held that the state had discharged the
onus
and that the
appellant had been rightly convicted.
[38]
In
S v Henry
1999 (1)
SACR 13
(SCA)
the appellant shot his ex-wife and her mother after
an argument at her home. He was charged with two counts of murder
and a contravention
of the Arms and Ammunition Act 75 of 1969. He
raised a defence of sane automatism and testified that he was in a
rage, heard loud
noises zinging in his ear and heard shouting. The
trial court rejected his defence and convicted him on all three
counts. In dealing
with his appeal Scott JA said the following (at
20 c – e
):
"By the very nature of
things the only person who can give direct evidence as to the level
of consciousness of an accused person
at the time of the commission
of the alleged criminal act, is the accused himself. His
ipse
dixit
to the effect that this act was involuntarily and
unconsciously committed must therefore be weighed up and considered
in the light
of all the circumstances and particularly against the
alleged criminal conduct viewed objectively. It is not sufficient
that there
should merely have been a loss of temper. Criminal
conduct arising from an argument or some or other emotional conflict
is more
often than not preceded by some sort of provocation. Loss of
temper in the ordinary sense is a common occurrence. It may in
appropriate
circumstances mitigate, but it does not exonerate. On
the other hand, non-pathological loss of cognitive control or
consciousness
arising from some emotional stimulus and resulting in
involuntary
conduct, i e
psychogenic automatism
,
is most uncommon. The two must not be confused."
(emphasis added)
The court considered the
absence of a trigger mechanism and concluded that the appellant's
conduct at the time of and after the shooting
was indicative of
conscious behaviour and inconsistent with automatism. His appeal was
dismissed.
[39]
In
S v Cunningham
1996 (1) SACR 631
(A)
the appellant was
an accountant in his late thirties. After a collision between a
motor vehicle driven by the appellant and two cyclists
he was charged
in the trial court with murder, attempted murder and three
contraventions of the Road Traffic Act 29 of 1989. The
appellant was
driving on the wrong side of the road and went through a red traffic
light before colliding with the cyclists. One
of the cyclists was
killed and another was left paralysed. The statutory offences
related to the appellant's failure to stop immediately
after the
collision and ascertain the nature and extent of the damage and
injury sustained in the collision. At his trial the appellant
raised
a defence of "sane automatism". The trail court rejected
this defence and held that he had been negligent. On
the count of
murder he was convicted of culpable homicide. He was acquitted on the
charge of attempted murder. The impact of the
collision had been
severe and the appellant had been in a confused state thereafter. He
was consequently acquitted on the statutory
charges. On appeal to
the Cape Provincial Division the appellant's conviction of culpable
homicide was confirmed. The appellant
appealed to this court against
his conviction of culpable homicide. In the trial court a
psychiatrist who testified in support of
the appellant's case held
the view that the most plausible explanation for the appellant's
behaviour was automatism. A psychiatrist
who testified on behalf of
the state held the view that an inference of automatism was not
justified. The magistrate in the trial
court preferred the view of
the psychiatrist who testified in support of the state's case. Scott
JA who delivered the judgment of
this Court stated the following at
635 g – h
:
"Criminal
responsibility presupposes a
voluntary act
(or
omission) on the part of the
wrongdoer.
Automatism
therefore necessarily precludes criminal responsibility."
(emphasis added)
The
learned judge of appeal, in dealing with the natural inference that
assists the state,
said
the following at
635 j
:
"In discharging the onus upon it the
State, however, is assisted by the natural inference that in the
absence of exceptional
circumstances a sane person who engages in
conduct which would ordinarily give rise to criminal liability does
so
consciously
and
voluntarily
. Common
sense dictates that before this inference will be disturbed a proper
basis must be laid which is sufficiently cogent and
compelling to
raise a reasonable doubt as to the
voluntary nature
of
the alleged
actus reus
and, if
involuntary
, that
this was attributable to some cause other than mental pathology."
(emphasis added)
Scott JA accepted that
before the collision the appellant was emotionally upset and was
preoccupied with problems to the extent that
he was not concentrating
on what was happening around him. He considered the lack of an event
that would serve as a trigger for
automatism. The learned judge of
appeal had regard to the manner of the appellant's driving before the
collision and held that no
factual foundation was established to
displace the inference of voluntariness. The defence was rejected.
[40]
In
S v Francis
1999 (1) SACR
650
(SCA)
the
appellant shot and killed a woman with whom he had a relationship.
Before killing her he shot her father in the elbow. In the
trial
court the appellant was convicted of murder and assault with intent
to do grievous bodily harm. His defence that he acted
in a state of
non-pathological criminal incapacity was rejected. Schutz JA in
discussing the appellant's defence states the following
at
651 h
:
"He contends that he
acted in a state of non-pathological criminal incapacity ('sane
automatism') with the results that either
he was unable to
distinguish right from wrong or, if he could, that he was unable to
control his actions."
As
can be seen, the learned judge equated sane automatism with
non-pathological criminal incapacity. A psychiatrist who was called
by the state pointed to various actions of the appellant which he
said showed an awareness of what he was doing, were purposeful
and
some of them of some complexity. Schutz JA agreed that there was a
series of deliberate actions by the appellant before, during
and
after the acts in question and he was able to distinguish his
victims. The appellant was also found to have lacked credibility.

His defence was rejected.
[41]
In
S v Kok
2001 (2) SACR 106
(SCA)
this Court accepted
that the appellant, a policeman who shot and killed a colleague and
her husband, was subjected to stress at work
and was in a depressed
state at the time of the shooting. It concluded that when he arrived
at the deceaseds' home he was in a confrontational
and belligerent
mood. He recalled going to the front door. He testified that he
lost his temper as a result of something one of
the deceased had said
to him. Scott JA said the following at
115 j â€“
116
a
:
"Loss of temper, that is to say a
failure to control one's emotional reactions, is not to be confused
with a loss of cognitive
control (see
S v Henry
1999 (1) SACR
13
(SCA) at 20
d – f
). The fact that he could recall these
events some days later indicates that he knew what he was doing and
is inconsistent with the
hypothesis that he was re-enacting some
memory in a dissociative state."
The court rejected the
appellant's assertion that he had no recollection of the shooting,
concluding that his behaviour after the
shooting was not what one
would have expected of someone who had no recollection of the crucial
event. The court rejected his defence.
[42]
From
the judgments of this Court referred to in the preceding paragraphs
it is clear that in order for an accused to escape liability
on the
basis of non-pathological criminal incapacity he has to adduce
evidence, in relation to the second leg of the test in
Laubscher's
case, from which an inference can be drawn that the act in
question was not consciously directed, or put differently, that it
was
an involuntary act. It is clear from the decisions in the
Potgieter
,
Henry
,
Cunningham
and
Francis
cases that the defence has been equated with
the defence of automatism.
[43]
The
decisions in the preceding paragraphs show that this Court has
approached defences of non-pathological criminal incapacity with
caution. In the
Henry
case the phenomenon is said to
be "most uncommon". In dealing with a natural inference
that people act consciously and
voluntarily this court has repeatedly
stated that the inference is disturbed in "exceptional cases".
In the
Wiid
case,
supra,
the only case in this
Court in which the defence was upheld, there was doubt whether the
appellant had the ability to distinguish
between right and wrong and
to act in accordance with that distinction. In that case not only
were the stressors severe and aggravated
by the intake of a sedative,
but also the immediate circumstances and the concussion suffered by
the appellant were so extreme so
as to persuade the psychiatrists and
the Court that there was a reasonable doubt about her criminal
capacity. It is perhaps because
of his repeated exposure to the
asserted defence that Dr Kaliski is so sceptical. His call for a set
of compelling facts before
he concedes the validity of the defence in
a given case is in line with the
dicta
referred to above. Dr
Kaliski equated automatism with the defence asserted by the appellant
in the present case and his explanation
makes it clear that in his
view the only circumstance in which one could "lose control"
is where one's cognitive functions
are absent and consequently one's
actions are unplanned and undirected. His view is in line with the
decisions of this Court.
[44]
The
approach of this Court in the decisions discussed in this judgment,
has been to carefully consider the accused's actions before,
during
and after the event. It took into account whether there was planned,
goal-directed and focused behaviour. In the decisions
referred to, a
determination was made about whether an accused was truly
disorientated - an indicator of temporary loss of cognitive
control
over one's actions and consequent involuntary behaviour. This Court
has repeatedly stated that a detailed recollection of
events
militates against a claim of loss of control over one

s
actions.
[45]
In
the
Henry,
Kensley
and
Kok
cases,
this Court warned against confusing loss of temper with loss of
control. In the
Henry
and
Kensley
cases,
as can be seen from the
dicta
referred to earlier in this
judgment, this Court, in assessing an accused person's evidence about
his state of mind, weighed it against
his actions and the surrounding
circumstances and considered it against human experience, societal
interaction and societal norms.
Griesel J at
183 h – i
of
his judgment did the same, when he considered the appellant's
behaviour against the behaviour of hundreds of thousands of people
who on a daily basis find themselves in the appellant's position and
who do not respond as he did. I will in due course deal with
criticisms of this approach.
[46]
I
turn to consider decisions of the High Court on which the appellant
relies. In
S v Arnold
1985 (3) SA 256
(C)
a case decided a year after the decision in
S v van Vuuren
1983 (1) SA 12
(A)
the accused, a 41 year-old man, shot and
killed his 21 year-old wife. The accused claimed that at the time the
fatal shot was fired,
because of emotional stress he did not have
criminal capacity. He claimed that he could not remember aiming the
firearm and pulling
the trigger. His description of events prior to
and after the shooting was detailed and precise. After the shooting
he was shocked
and remorseful but showed presence of mind, attempting
to summon the police and an ambulance. He had entered his home with a
firearm
in his hand. He was emotionally distraught and angry about
earlier events and was subjected to a number of stressors such as
financial
problems and his deteriorating relationship with his
mother-in-law. His wife enjoyed flaunting her natural assets and
taunting him.
Shortly before the shooting she had leant over while
talking to him, provocatively revealing her breasts while stating her
intention
to take up a career as a stripper. It is clear from a
reading of the judgment that the court saw the accused in a
sympathetic light.
The psychiatric evidence on behalf of the
appellant was to the effect that his 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. The state
did not call any psychiatrist nor contest the opinions expressed by
the psychiatrist
who testified in support of the appellant. Burger J
concluded that there was reasonable doubt that when the accused
killed the deceased
that he was acting unconsciously. The learned
judge then stated (at
263 H – I
):
"Assuming, however,
that the accused was acting consciously, the further question arises
as to whether he had criminal capacity
('toerekeningsvatbaarheid').
A person is said to be criminally responsible or to have criminal
capacity when he is able to appreciate
the wrongfulness of his act
and act accordingly."
By
putting it in these terms the learned judge created the impression
that one can act consciously but at the same time not be able
to act
in accordance with one's appreciation of what is right and wrong.
The accused's
ipse dixit
about his state of mind was readily
accepted by Burger J. His focused and goal-directed behaviour
before, during and after the event
was not given adequate weight.
The test for criminal incapacity as laid down in the decisions of
this Court was misapplied.
[47]
In
S v Nursingh
1995 (2) SACR 331
(D)
the
accused, a university student, shot and killed his mother,
grandfather and grandmother. He raised the defence of
non-pathological
criminal incapacity. The accused had a
predisposition to emotional outbursts. His evidence shed very little
light on events immediately
before the shooting. The evidence of a
young friend, Soni, who was elsewhere in the house assisted the Court
to piece together the
events that led to the death of the deceased.
There was evidence that the accused

s
mother abused him sexually and it was possible that he may have
rejected overtures from her immediately before the shooting took
place. Soni heard an argument take place and heard the accused’s
mother’s voice raised to a screaming pitch. Soni arrived at
the
scene after the shooting had occurred. He found the accused in a
bewildered state, at times babbling incoherently. They both
fled the
scene. According to Soni when they realised the enormity of what had
occurred they formed a plan to avoid implication.
It is clear that
the abuse, sexual and otherwise that the accused suffered at the
hands of his mother over a long period weighed
heavily with the
Court. The evidence of a psychiatrist and a psychologist was that
having regard to the appellant’s predisposition
to emotional
outbursts and the sudden and immediate threat to him by his mother,
in the context of the prior abuse, he might have
undergone a state of
altered consciousness with a temporary destruction of his intellect.
The state did not call an expert in rebuttal.
The court saw the
firing of the pistol as a mere motor function. The accused and Soni
were believed in their version of events
and the appellant was
acquitted.
[48]
The
Nursingh
case does leave one with a sense of disquiet
at an acquittal in the face of the enormity of the deed. The case
however does not
provide support for the appellant. In that case
there was evidence that the accused’s intellect had been destroyed.
The goal-directed
actions by the accused were limited to the
multiple shooting. Subsequent to the event he was babbling
incoherently and was crying.
The trigger was one that apparently had
built up from years of physical, emotional and sexual abuse. The
combination of factors
was extreme and unusual.
[49]
Less
easy to explain is the case of
S v Moses
1996 (1)
SACR 701
(C)
. The accused and the deceased developed a
homosexual relationship. On the night in question, immediately after
unprotected anal
intercourse, the deceased announced that he had
AIDS. This angered the accused and a flood of thoughts entered his
mind. He thought
about his own death and about breaking the news to
his family. In his fury he attacked the deceased with an ornament.
Thereafter
he ran to the kitchen and obtained a small knife with
which stabbed the deceased. He returned to the kitchen to fetch a
bigger knife
with which he cut the deceased’s throat and wrists.
The accused testified that when he cut the deceased’s throat and
wrists
he saw what he was doing and could not stop himself. After
the event he was shocked and sat in the passage realising that he had
committed what he thought was a crime. He tried to remove his
fingerprints from objects he had touched and attempted to clean blood
stains. He drove off in a motor vehicle and gave a hitchhiker a
lift, unsuccessfully attempting to seduce him to create an alibi.

After his arrest he made a false statement to a magistrate, later
deciding to tell the truth. The hitchhiker testified and stated
that
the accused looked relaxed and normal. A post-mortem examination
confirmed that the deceased was HIV positive. The accused
testified
that his father had sexually abused him. A clinical psychologist who
testified in support of the accused’s case stated
that the accused
was prone to rage reactions and had poor impulse control. When
provoked he would know what he was doing but would
have been unable
to stop himself. The clinical psychologist did not contend that the
accused had acted in a state of automatism.
A psychiatrist who
testified in support of the accused’s case agreed with the
psychologist. He saw the pronouncement by the deceased
of his HIV
condition as a trigger to the accused’s conduct, which in his view,
the accused related to the abuse at the hands of
his father. The
psychiatrist testified that in a state of rage one’s capacity to
"retain control" is "definitely
impaired".
Against this evidence the state led the evidence of Dr Jedaar, who at
that time was still employed at Valkenberg
Hospital. He postulated
the view that one can never lose control except in a state of
automatism. He stated that even in a state
of extreme rage one still
has cognitive ability. Following upon a state of automatism one is
usually bewildered. Jedaar held the
view that the accused’s
conduct was not uncontrolled or involuntary and that the killing was
not committed in a state of automatism.
Each act was planned,
goal-directed and controlled. The court in the
Moses
case,
dismissed Jedaar’s view, stating that it flies in the face of South
African law. The mistake that Jedaar is accused of making
is that
the bulk of his evidence was directed at showing that the accused had
not acted in a state of sane automatism. The court
in the
Moses
case referred to the
Wiid
,
Laubscher
,
Campher
,
Potgieter
cases as support for its
view that the defence of non-pathological criminal incapacity is
distinct from the defence of automatism.
Jedaar, as we can see, has
undergone a conversion since he testified in that case.
[50]
Another
case that is difficult to explain is
S v Gesualdo
1997
(2) SACR 68
(W)
.
In that case the accused shot and killed
his friend. Their relationship deteriorated when the deceased
attempted to cut the accused
out of a business venture, which was the
latter's idea in the first place. They had engaged in public
arguments and the deceased
resorted to foul language. There were
stormy conversations on the telephone. The deceased had threatened
the accused, which resulted
in the accused visiting the police for
assistance. Two days before the shooting the accused was involved in
a discussion with the
deceased and became very angry. In the
presence of a witness he said he would visit the deceased at his
factory and that the witness
should not get involved. The witness, a
Mr Molina, testified that the accused’s anger had been building up
progressively as a result
of the deceased’s behaviour. The accused
testified that on the morning of the shooting he drove around
aimlessly. He had his
firearm on him. From the time he arrived at
work he recalled breaking a machine but recalls nothing of the
shooting incident. Mr
Molina testified that the accused entered the
deceased’s premises carrying a packet in his hand. He pulled a
firearm from it and
pointed it at the deceased. The deceased taunted
the accused and challenged him to discharge the firearm. The accused
shot and
killed the deceased and pointed the firearm at Mr Molina
before running away. He was found several hours later wandering
around
and did not appear to comprehend why he was being arrested.
The accused was taken to his flat where he pointed out the firearm.

The court accepted that he was disoriented after the event. The two
psychiatrists who testified did not doubt the genuineness of
the
accused’s amnesia. The psychiatrist who testified in support of
the accused’s case stated that he was to some extent aware
of what
he was doing and able to distinguish between right and wrong but was
unable to act in accordance with that distinction because
he had lost
control of himself. He did not contend that the accused acted in a
state of automatism. Dr Vorster, who was called
by the State,
testified that the accused had not acted in a state of automatism as
he was capable of taking complex decisions and
actions were
goal-directed. Like the court in the
Moses
case, the
court in the
Gesualdo
case rejected the view of the
state psychiatrist on the basis that it flew in the face of decisions
of this Court, which in its view
held that persons who could
distinguish between right and wrong and who had not acted
automatically may nevertheless, because of
emotional stress, have
lost control of their actions to such an extent that they would
escape criminal liability.
[51]
In
South African Criminal Law and Procedure
(Vol 1)
by JM
Burchell,
supra
, the learned author, in dealing with
provocation and emotional stress expresses disquiet at the growing
trend in court decisions,
excusing acts committed by people driven to
them by emotions such as jealousy and anger. The following appears
at
202
:
"The general approach
in most legal systems is that provocation does not excuse from
criminal liability. People are expected
to control their emotions.
Furthermore, in many cases the response to the provocation is in the
nature of a revenge for harm suffered.
Since it is a fundamental
principle of modern systems of criminal justice that vengeance for
harm suffered must be sought through
the public criminal process and
not by personal self-help, the criminal law is precluded from
admitting the provocation should be
a justification for unlawful
conduct."
In
the
Moses
and
Gesualdo
cases we appear to
have moved from the fundamental position that provocation is a
mitigating factor to a position where it has become
an exculpatory
factor. The approach adopted by this court in the decisions
discussed earlier was not followed in the
Arnold
,
Moses
and
Gesualdo
cases.
[52]
In
an article in
South African Journal of Criminal Justice
(2001) 14 pp 206 -216
entitled
S v Eadie
:
Road Rage, Incapacity and Legal Confusion
Ronald Louw,
of the University of Natal, takes a critical look at the judgment of
the Court below and the judgments in the
Nursingh
and
Moses
cases. He is particularly critical of the
decision in the
Moses
case,
stating the
following (at
216
):
"The acquittal in
Moses
leaves
us with a dangerous precedent. In future whenever a person flies
into an 'annihilatory rage' and kills somebody, irrespective
of the
reason for the rage and the relationship between the accused and the
deceased, the killing will be permissible. This subjects
society to
the whims of the short-tempered. This is wrong. If we follow
Moses
then, unlike in
Eadie
, those who kill in circumstances of
road rage, can expect to be acquitted."
[53]
This
unsatisfactory state of affairs arose because of a misapplication and
a misreading of decisions of this Court. Burchell and
Hunt in
South
African Criminal Law and Procedure
(
2
nd
ed) Vol
1
, in the passage quoted in paragraph [24] of this judgment,
adopt the position that when one is dealing with a reflexive or
automatic
act an accused would be exempt from criminal liability on
the ground that his act was not one of which the criminal law takes
cognisance.
The second leg of the test in
Laubscher’s
case
is read to mean that one looks to see whether in all the
circumstances of the case the accused could not resist or refrain
from
this act or was unable to control himself to the extent of
refraining from committing the act.
[54]
Likewise,
Snyman in
Criminal Law
,
supra
, at
152 - 153
states:
"The (a) inability to act in
accordance with an appreciation of the wrongfulness of the act (in
other words the absence of the
conative mental function) must not be
confused with (b) the inability of a person to subject his bodily
movements to his will or
intellect. Inability (b) deals with the
question of whether X has committed an act in the criminal-law sense
of the word. If inability
(b) is absent, it means that X has acted
involuntarily and that there was no act or conduct as these terms are
understood in the
criminal law. An example of this is where X walks
in his sleep. The crucial question is whether X is capable of
controlling his
physical (or motor) movements through his will. On
the other hand inability (a) has nothing to do with the question of
whether X
has acted or not, but forms part of the test to determine
capacity.
Here X does have the power to subject his bodily
movements to his will, but what he is not capable of doing, is
to properly resist the temptation to commit a crime
.
In short, in (
a
) the mental power of resistance which a normal
person has is absent, whereas in (
b
) the power or ability
physically to control one's bodily movements is lacking."
(emphasis added)
[55]
Ronald
Louw, in taking a critical look at the judgment of the Court below
states, (at
207
)
of his article,
supra
:
"This lack of clarity has been
exacerbated by confusing decisions of our courts. This confusion is
partly a result of its application
in practice. This note seeks to
identity some of the confusion in an attempt to chart a clearer way
forward. The court in
Eadie
acknowledges this confusion and
tries to clarify the problem to some extent. Unfortunately I think
the court adds to the confusion
in two respects, namely in the lack
of a clear distinction between automatism and incapacity and,
secondly, in the implied assumption
of an objective test for
provocation defences."
In
dealing with the now vexed question of automatism
versus
non-pathological criminal incapacity the learned author states the
following at
207
:
"However, in one
respect, capacity appears to be similar to conduct. This relates to
the second leg of the capacity inquiry:
whether the accused was able
to control himself in accordance with his appreciation of right and
wrong. In other words, capacity
is absent where the accused lacks
self-control. It is far from clear in our law when self-control is
absent."
The
learned author refers to the attempt by Griesel J to explain the
distinction between automatism and the defence of non-pathological
criminal incapacity and the learned judge

s
conclusion that it is a distinction without a difference. He
suggests that this added to the confusion and states that we must
decide whether the two defences are identical or distinct.
[56]
In
Ronald Louw’s view the decisions in the
Nursingh
and
Moses
cases,
supra
, significantly added to the
confusion. He submits that in the
Nursing
case the
court failed to distinguish between capacity and intention and
furthermore confused the capacity test itself. In this regard,
at
208
, he refers to the following passage from that
judgment
(at
334 b - c
):
"Now, although the onus is on the
State to show that the accused had the necessary criminal capacity to
establish and found the
mens rea
necessary to commit an
offence, where an accused person relies on non-pathological causes in
support of a defence of criminal incapacity,
then he is required to
lay a factual foundation for it in evidence, sufficient at least to
create a reasonable doubt on the issue
as to whether he had that
mental capacity."
In
the
Moses
judgement the court drew a very clear
distinction between automatism and the lack of self-control. The
learned author argues that
in the wake of these cases we are left
with no clear understanding of what
“
loss
of control” means. He submits that logic dictates that we cannot
draw a distinction between automatism and lack of self-control.
He
argues that if the two were distinct it would be possible to exercise
conscious control over one’s actions (the automatism
test) while
simultaneously lacking self-control (the incapacity test). Louw
submits that if there is no distinction then the second
leg of the
test in the
Laubscher
case should fall away: capacity
would then be determined solely on the basis of whether the person is
able to appreciate the difference
between right and wrong. It
follows, so he argues, that once an accused has been shown to have
capacity he may then raise involuntariness
as a defence. At
211
he states:
"We will then also have
a sounder principle and body of law to rely on in assessing the
defences. Such a clearer distinction
will, I argue below, deal
correctly with the more controversial judgments that have recently
dogged the provocation defence."
[57]
I
agree with Ronald Louw that there is no distinction between sane
automatism and non-pathological incapacity due to emotional stress
and provocation. Decisions of this Court make that clear. I am,
however, not persuaded that the second leg of the test expounded
in
Laubscher’s
case should fall away. It appears
logical that when it has been shown that an accused has the ability
to appreciate the difference
between right and wrong, in order to
escape liability, he would have to successfully raise involuntariness
as a defence. However,
the result is the same if an accused's
verified defence is that his psyche had disintegrated to such an
extent that he was unable
to exercise control over his movements and
that he acted as an automaton - his acts would then have been
unconscious
and
involuntary. In the present contest,
the two are flip sides of the same coin. The judgments of this Court
referred to earlier,
as the highlighted parts of relevant
dicta
show, see it as such.
[58]
It
appears to me to be clear that Joubert AJ was concerned to convey, in
the second leg of the test set in the
Laubscher
case,
that the State has to prove that the acts which are the basis for the
charges against an accused were consciously directed by
him. Put
differently, the acts must not have been involuntary. It is
therefore not surprising that the defence is described as
sane
automatism, first in the
Potgieter
case and then later
in the
Cunningham, Henry
and
Francis
cases.
In
South African Criminal Law and Procedure
(Vol 1)
General Principles of Criminal Law
(3
rd
ed)
JM
Burchell, in discussing voluntary conduct (at
pp 41 â€“ 42
)
states the following:
"Modern western
philosophy derives the notion of individual responsibility from the
doctrine of free will. This holds that all
humans are born with the
ability freely to choose between different courses of action. Having
this freedom the individual a justifiably
be held to be responsible
for the consequences of his chosen actions. It follows from this
that persons will only be held criminally
liable if their actions are
determined by their own free will. This principle is expressed by
the requirement that for the purposes
of the criminal law, a human
act must be voluntary in the sense that it is subject to the
accused's will. Where for some reason
or another is deprived of the
freedom of his will, his actions are 'involuntary' and he cannot be
held liable for them."
Later on, at
42
,
the learned author sets out terms used by South African courts to
describe involuntary conduct: "mechanical activity",
"unconsciousness", "automatic activity",
"onwillekeurige handeling", and "involuntary lapse of
consciousness". The learned author states that it is clear from
these terms that voluntary conduct must be regarded as conduct
controlled by the accused's conscious will. In my view the
insistence that one should see an involuntary act unconnected to the
mental element, in order to maintain a more scientific approach to
the law, is with respect, an over-refinement.
[59]
Whilst it
may be difficult to visualise a situation where one retains the
ability to distinguish between right and wrong yet lose
the ability
to control one’s actions it appears notionally possible.
[60]
The
view espoused by Snyman and others, and reflected in some of the
decisions of our courts, that the defence of non-pathological
criminal incapacity is distinct from a defence of automatism,
followed by an explanation that the former defence is based on a loss
of control, due to an inability to restrain oneself, or an inability
to resist temptation, or an inability to resist one’s emotions,
does violence to the fundamentals of any self-respecting system of
law. This approach suggests that someone who gives in to temptation
may be excused from criminal liability, because he may have been so
overcome by the temptation that he lost self-control - a variation
on
the theme: “the devil made me do it”. It is for this reason that
it was suggested earlier that the use by Joubert JA in
Laubscher's
case,
supra
, of the word "weerstandskrag"
was unfortunate. So too was the use of the word "drang" in
Campher's
case at
956 B
,
referred to in
paragraph [32] of this judgment. These words suggest a resistance to
urges or temptation. No self-respecting system
of law can excuse
persons from criminal liability on the basis that they succumbed to
temptation.
Against the fundamental principles
restated by JM Burchell (quoted in paragraph [58] of this judgment)
it is with respect, absurd
to postulate that succumbing to temptation
may excuse one from criminal liability. One has free choice to
succumb to or resist temptation.
If one succumbs one must face the
responsibility for the consequences.
[61]
The
time has come to face up to the fact that in some instances our
courts, in dealing with accused persons with whom they have sympathy,
either because of the circumstances in which an offence has been
committed, or because the deceased or victim of a violent attack
was
a particularly vile human being, have resorted to reasoning that is
not consistent with the approach of the decisions of this
Court.
Mitigating factors should rightly be taken into account during
sentencing. When an accused acts in an aggressive goal-directed
and
focused manner, spurred on by anger or some other emotion, whilst
still able to appreciate the difference between right and wrong
and
while still able to direct and control his actions, it stretches
credulity when he then claims, after assaulting or killing someone,
that at some stage during the directed and planned manouevre he lost
his ability to control his actions. Reduced to its essence it
amounts
to this: the accused is claiming that his uncontrolled act just
happens to coincide with the demise of the person who prior
to that
act was the object of his anger, jealousy or hatred. As demonstrated
courts have accepted such version of events from accused
persons.
[62]
It
is necessary to deal with one further aspect raised by the appellant,
namely, that in terms of our law a purely subjective test
should be
applied when the question of incapacity is raised, and that Griesel J
erred in resorting to objective criteria such as
the behaviour of
hundreds of thousands of other motorists.
[63]
In
his article,
supra
, Ronald Louw submits that a second aspect
of confusion in the judgment of the Court below is the use of an
objective test for determining
criminal capacity. The learned author
refers to the
Kensley
case, where in his view a more
explicit objective test for capacity was set out at
658 h - j
.
He asks the question: should our law include some objective
criterion in the capacity enquiry? He refers to Burchell and Milton
who, in
Principles of Criminal Law
(2
nd
ed)
(
1997
), suggest that such a shift might be appropriate but
state that legislation or a bold judicial reassessment is necessary.
Ronald
Louw’s view is that neither development is likely, nor
necessary. At 212 he states:
"Part of the current
uneasiness with the provocation defence is that it is one that seems
easily to lead to an acquittal contrary
to a common sense feeling of
injustice..."
In
the learned author’s view the problem does not lie in the
subjective aspect of the test but in its application.
[64]
I
agree that the greater part of the problem lies in the misapplication
of the test. Part of the problem appears to me to be a too-ready
acceptance of the accused's
ipse dixit
concerning his state of
mind. It appears to me to be justified to test the accused's
evidence about his state of mind, not only against
his prior and
subsequent conduct but also against the court's experience of human
behaviour and social interaction. Critics may
describe this as
principle yielding to policy. In my view it is an acceptable method
for testing the veracity of an accused's evidence
about his state of
mind and as a necessary brake to prevent unwarranted extensions of
the defence. The
Kensley
and
Henry
cases
adopted this approach.
[65]
To
maintain the confidence of the community in our system of justice the
approach of this Court, established over almost two decades
and
described earlier in this judgment, should be applied consistently.
Courts should bear in mind that the phenomenon of sane people
temporarily losing cognitive control, due to a combination of
emotional stress and provocation, resulting in automatic behaviour,
is rare. It is predictable that accused persons will in numbers
continue to persist that their cases meet the test for
non-pathological
criminal incapacity. The law, if properly and
consistently applied, will determine whether that claim is justified.
[66]
In
the present case it is common cause that the appellant did not at the
relevant time act in a state of automatism. Jedaar was emphatic
about this. In any event the facts are such that the appellant
should be held responsible for his actions. Griesel J may not have
been completely accurate in his description of the asserted defence.
However, his conclusions on the facts of the case cannot be
faulted.
He displayed the necessary caution in his approach to the appellant’s
evidence. He was right to consider the appellant’s
goal-directed
and focused behaviour, before, during and after the incident in
question, as indicating presence of mind. The appellant
was angry
with the deceased and intended to vent that anger. He intended to be
violent and destructive. All of his actions were
performed with
presence of mind. How can we believe him when he says that his
directed and planned behaviour was suddenly interrupted
by a loss of
control over his physical actions when those actions are consistent
with the destructive path he set out on when he
was admittedly
conscious? The learned judge correctly considered the appellant’s
detailed account of the assault as an indicator
of consciousness.
Griesel J was correct to conclude that there were no signs of true
disorientation subsequent to the event. The
learned judge’s
conclusion that the appellant’s deceitful behaviour immediately
after the event should count against him cannot
be faulted. His
finding that the appellant could not be believed about his state of
mind at the relevant time is wholly justified,
as is the conclusion
that the psychiatrists' evidence has to be viewed against that fact.
In any event, Kaliski’s approach to
the asserted defence is to be
preferred to that of Jedaar. The dismissal of Jedaar’s view of
non-pathological criminal incapacity
by the court in the
Moses
case, appears to be an explanation for his more recent view.
A close reading of his evidence in the present case reveals a number
of inconsistencies and unsatisfactory explanations, particularly
where he is attempting to justify the appellant’s conduct. Jedaar
sought to persuade the Court below that the event in 1990 played a
part in the assault on the deceased. Even though the appellant
testified about that event he did not in his evidence in the Court
below state that he relived that experience as testified to by
Jedaar. I agree with the conclusions reached by the Court below that
the event played no part in the appellant’s conduct. Jedaar
testified that the appellant acted involuntarily because of the
absence of a directing mind, due to disturbed cognition, but was
unwilling to equate the appellant's actions with that of someone
acting in a state of automatism. I find Jedaar's evidence wholly
unpersuasive. It appears to me to be clear, as found by Griesel J,
that the appellant lost his temper and did not lose control over
his
actions. The appellant is someone who is inclined to lose his
temper. Finally, I agree with Griesel J’s conclusion that the
appellant had the necessary intention to kill, particularly if regard
were had to the viciousness of the attack. I agree with the
learned
judge that Hill’s evidence is probable and that the attack took
place as described by Hill, notwithstanding the discrepancies
in his
evidence concerning,
inter alia
, the number of blows he
witnessed. It does however make no difference if one were to accept
the appellant’s version of how he
perpetrated the assault. When he
gave vent to his anger and engaged in the savage attack directing
blows and kicks at the head of
the deceased he must have foreseen the
resulting death of the deceased.
[67]
In
sentencing the appellant Griesel J dealt with the phenomenon of road
rage. His judgment on sentence is reported as
S v Eadie (2)
2001 (1) SACR 185
(C)
. At
189 b – c
the learned
judge refers to the intense public and media interest in the
appellant's trial. At
189 c – e
he states the following:
"Part of the reason for
this interest is, no doubt, because so many people can identify with
the phenomenon of so-called 'road
rage'. This is not a phenomenon
that is unique or limited to our society. On one of the many
Internet websites dealing with the
topic the following appears:
'Road rage is ubiquitous
in America today. Evidently the average commuter in our cities,
towns, villages and on our highways across
the country is filled with
anxiety, stress, antagonism, discontent and fear that encourages such
incidents. Most of the victims
recognise a dramatic increase in road
rage. …What causes aggressive driving and habitual road rage? And
everybody points to the
same factors: more cars→more traffic→more
frustration→more stress→more anger→more anger→more
hostility→more violence.
More cars leads to more aggression on the
roads, sort of like rats fighting in a crowded colony.'
These symptoms sound all too
familiar and similar to situations encountered on our own roads every
day."
[68]
Shannon
Hoctor of the University of Port Elizabeth, in an article entitled
Road rage and reasoning about responsibility SACJ
(2001) 14
195
,
deals with the phenomenon of road rage. We were
referred to this article by counsel for the appellant as support for
the argument
that the Court below improperly conflated automatism and
non-pathological criminal incapacity. That argument has already been
dealt
with. My reference to the article is limited to the following
description of the phenomenon of road rage at
195
:
"Whilst the exact ambit
of the term is rendered somewhat vague by misuse, it is clear that
road rage is a product of the confluence
of a number of factors –
aggression, increasing frustration, the feeling of power associated
with driving – which converge to
create a cauldron of stressful
conditions…"
[69]
In
S v Sehlako
1999 (1) SACR 67
(W)
an accused was
convicted of murder after he shot and killed the driver of a car that
collided with his. In sentencing the
accused
Borchers J said the following at
71 i
– j
:
"As far
as the offence is concerned, the murder can on the facts before me
only be attributed to what has come to be called 'road
rage'. It was
obviously not premeditated. It arose directly from the fact that the
accused believed that the deceased was responsible
for the collision
which occurred between their respective vehicles. It was, however, a
cold-blooded and wholly unnecessary killing.
This country is
suffering from an epidemic of violence which cannot be tolerated."
Later,
at
72 b – c
,
the following appears:
"Each and every person
who drives a vehicle can expect to be involved in a collision at some
or other time. It is wholly unacceptable
that such a person, even if
he is the cause of such collision, can be executed on the scene by
the other driver. In my view even
where an accused's personal
circumstances are extremely favourable, as they are in this case,
they must yield to society's legitimate
demand that its members be
entitled to drive the roads without risk of being murdered by other
irate drivers."
I agree with these
sentiments.
[70]
There
is no doubt that in the present case the appellant was provoked and
that the deceased behaved badly. The deceased and the appellant
had
no business being on the road in their state of insobriety. The
deceased's aggressive and provocative behaviour did not entitle
the
appellant to behave as he did. It must now be clearly understood
that an accused can only lack self-control when he is acting
in a
state of automatism. It is by its very nature a state that will be
rarely encountered. In future, courts must be careful to
rely on
sound evidence and to apply the principles set out in the decisions
of this Court. The message that must reach society is
that
consciously giving in to one’s anger or to other emotions and
endangering the lives of motorists or other members of society
will
not be tolerated and will be met with the full force of the law.
[71
]
For
all the reasons mentioned earlier in this judgment the appeal is
dismissed.
_________________
M S NAVSA
JUDGE OF APPEAL
CONCUR
:
OLIVIER
JA
STREICHER JA