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CRW2601 - 9. Culpability (DETAILED ANSWERS) Semester 2 2024 - DISTINCTION GUARANTEED_.pdf
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8/11/24, 10:33 AMCRW2601 - 9. Culpability
Jeremiah
Terms in this set (17)
Mens rea = fault. The mere fact that a person has committed an unlawful act which
complies with the definitional elements and which is unlawful is not yet sufficient to
render him criminally liable: X's conduct must be accompanied by culpability. Will be
the case if he has committed the unlawful act in a blameworthy state of mind.
Unlawfulness v Culpability:
Unlawfulness: Agnostic to personal characteristics of perpetrator.
What is Culpability? Culpability: Personal characteristics of perpetrator taken into consideration. Person
must be endowed with criminal capacity before person has acted culpably. X must have
acted either intentionally or negligently. Thus: culpability = criminal capacity + (intention
or negligence)
The culpability and the unlawful act must be contemporaneous. No crime is committed
if culpability only existed prior to the commission of the unlawful act, but not at the
moment the act was committed, or if it came into being only after the commission of
the unlawful act. (Case: Masilela 1968)
A person is endowed with criminal capacity if he has the mental ability to 1. appreciate
What is Criminal Capacity? the wrongfulness of his act or omission, and 2. act in accordance with such an
appreciation of the wrongfulness of his act or omission.
The question whether X acted intentionally or negligently arises only once it is
established that he had criminal capacity.
Criminal Capacity: Connected with mental abilities
Discuss Criminal Capacity vs Intention.
Intention: Presence or absence of a certain attitude or state of mind
Not knowing something is unlawful means that X acted without intention, not that he is
without criminal capacity.
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1. Ability to appreciate wrongfulness (cognitive)
2. Ability to act accordance with such an appreciation (conative)
Cognitive:
1. Emphasis on insight and understanding.
2. Insight.
Discuss Two psychological legs of test.
3. Ability to differentiate.
Conative:
1. Self control.
2. Ability to conduct oneself in accordance with what is right and wrong.
3. Power of resistance.
1. Mental illness
2. Youthfulness
Discuss Particular Defences excluding
Defence can only succeed if the mental inabilities are the result of particular
criminal capacity.
circumscribed mental characteristics to be found in the perpetrator. Subject to certain
rules only applicable to these defences (mental illness by sections 77 to 79 of Criminal
Procedure Act , youthfulness by arbitrary age)
1. Defence of non-pathological criminal incapacity
Not dependent upon the existence of specific factors or characteristics of the
perpetrator which lead to his criminal incapacity. Defence may succeed without any
need of proving that at the time of the commission of the act X was suffering from a
Discuss General Defence excluding criminal
mental illness. Sufficient to prove that X lacked criminal capacity for only a relatively
capacity.
brief period and that the criminal incapacity was not a manifestation of an ailing or sick
(pathological) mental disturbance. Eadie 2002 casts doubt as to whether defence still
exists. Described in Laubscher 1988. NPCI adopted in order to distinguish it from mental
illness as described in section 78 of the CPA.
1. NPCI (non-pathological criminal incapacity) : before Eadie 2002.
Not necessary to prove that X's mental inabilities resulted from certain specific causes.
If court is satisfied that X lacked criminal capacity, X must be found not guilty,
irrespective of the cause of the inability. Emotional collapse due to shock, fear, anger,
concussion. Could stem from:
a) Intoxication
b) Provocation by Y or someone else If X relies on this defence the onus of proving
beyond reasonable doubt that X had criminal capacity at the time of the commission of
the act rests upon the state. However, X must lay a foundation for the defence in the
evidence. Cases: Campher 1987, Wiid 1990
Discuss (non-pathological criminal
incapacity) in relation to Eadie 2002. 2. NPCI (non-pathological criminal incapacity): after Eadie 2002.
Court holds that "there is no distinction between non-pathological criminal incapacity
owing to emotional stress and provocation, on the one hand, and the defence of sane
automatism, on the other." Thus, NPCI is seen as sane automatism: does not succeed
easily and is rarely upheld.
3. NPCI (non-pathological criminal incapacity): Current Law.
Submitted that: Eadie is applicable only where X alleges that his actions are as a result
of provocation or emotional stress. Eadie is not applicable where other causes, i.e.
intoxication are used and NPCI can still be used. If provocation or emotional stress are
used as defence, defense should be treated as one of sane automatism.
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