- Is there a causal nexus between X’s conduct and the unlawful result?
- There is a two-part test (But for test) (application depends on either a commission or omission)
- What is causation? We need to assume that X has acted and X’s conduct is unlawful.
- Did the conduct of the accused cause the unlawful result in question?
In order for the element of causation to be satisfied, one needs to answer these questions in the affirmative.
- Definition – In a consequence crime (materially defined crimes), there is causal nexus between the unlawful conduct
and the unlawful result if the unlawful conduct is both the factual and legal cause of the unlawful result.
- There are 3 parts/requirements of causation
1. Relates to a consequence crime (materially defined crime)
2. Must be the factual cause
3. Must be the legal cause Causal nexus must be
established
- Consequence crime: These are criminal offences that relate to the crime being in the consequence of the crime, and
not in the conduct of the crime itself. For example, murder or culpable homicide (how X is killed is irrelevant).
- Conduct crime: these are also known as formally defined crime or circumstance crimes. This is where the crime is in
the conduct of the crime. The focus is upon what X does, the consequences of X’s conduct is not important in
deciding guilt. For example, rape or the possession of drugs.
- General rule: Causation is an element of consequence crimes and not conduct crimes.
Factual and legal causation
- Causal nexus is made up of 2 types of causation, factual and legal causation (both need to be satisfied).
1. Factual causation – causal nexus in fact
2. Legal causation – causal nexus in law
- The existence of only 1 type of causal nexus is not sufficient.
- If we cannot establish factual causation, we don’t need to move on to legal causation.
- SA law requires us to identify both factual and legal causation for causation to exist.
- The enquiry always starts with factual causation.
The test for factual causation
- The test for FC is called the “But-for” test.
- There are 2 versions of this test:
1) Conditio sine qua non (relates to commissions or acts)
2) Conditio cum qua non (relates to omissions or a failure to act)
- But for X’s conduct would the unlawful result have happened? Was there a causal nexus between X’s conduct and the
unlawful result?
, Version 1 – CONDITIO SINE QUA NON
- Used when X’s conduct involved a commission.
- “the condition without which not”
- Involves hypothetical elimination.
- Was X’s conduct the condition without which the result would not have happened? But for X’s conduct would the
unlawful result have occurred?
- Eliminate X’s conduct and see what happens. When taking the commission away, does the unlawful result disappear?
If YES, it means that X’s conduct was the FC – If NO, it means that X’s conduct was not the FC of the result
- Was X’s conduct required for the unlawful result to happen?
- For example: X punches Y in the fact, Y falls down and knocks her head and sustains a head injury which lead to a
hemorrhage and to her death. If X did not punch Y would she have fallen, NO. Would the unlawful result have
occurred, NO. This means that X is the FC.
Makali 1950 (1) SA 340 (N)
X had attacked V with a knife and the knife cut V’s left wrist. Because of V’s cut, he lost a lot of blood. V was taken to the
hospital, while at the hospital he complained about a pain across his chest and later died. The doctor who treated V said
the cause of his death was due to a heart attack.
The court had to decide whether X’s conduct by slashing V’s wrist with the knife, was the FC of his death. The court
applied the conditio sine qua non test. The court held that V would not have died but for X’s unlawful attack, the
unlawful result would not have come about if X did not attack V (X’s conduct is the FC of V’s death).
Version 2 – CONDITIO CUM QUA NON
- Used for omissions.
- “the condition with which”
- Involves hypothetical addition.
- Was X’s omission the condition with which the result would not have happened? Was X’s omission required for the
unlawful result to have happened?
- Assume X did act, does the unlawful act disappear?
If YES, it means X’s omission is the FC – If NO, it means X’s omission was not the FC
- Was X’s omission required for the unlawful result to have happened?
Minister of Police v Skosana
In this case Mr. Skosana had been arrested for drunken driving and causing an accident. He was placed in a police cell.
After being arrested and while in the cell, he complained to the police officers, X and Y, that he had abdominal pains.
They took him to the hospital, but they did not do so immediately there was a long delay before they took him. When
Mr. Skosana arrived at the hospital he had to undergo an emergency surgery, he died not too long after.
Mr. Skosana’s wife sued the Minister of Police for damages (delictual claim); she sued on behalf of her children and
herself. She claimed that her husband’s death was a result of the police officers’ omission; she said if they had taken him
to the hospital sooner he would have still been alive.
The conditio cum qua non and the hypothetical addition was applied. The court said; assume that X and Y did take him to
the hospital on time, would the unlawful act disappear? The court said yes, he would not have died but for the delay of
the police officers. The court found that by omission, X and Y were responsible for Mr. Skosana’s death. They found in
favour of Mr. Skosana’s wife for the claim of damages.
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