This document contains test essay format, using factual and legal causation as examples.
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In a consequence crime, there is a causal nexus between the unlawful conduct and the unlawful
result, if the unlawful conduct is both the factual cause and the legal cause of the unlawful result.
Causation has two legs that must be proven. Firstly, Factual causation which is a causal nexus in
fact and secondly, Legal Causation which is a causal nexus in law. Both are required to prove
causation if either one is absent, X is not at fault and the element of causation is not met.
FACTUAL CAUSATION
Factual causation has one test and two versions of the test. It is called the “but for” test.
The first version is used for commissions and is called the conditio sine qua non. This test
involves a hypothetical elimination of the unlawful conduct. We then ask the question: Does the
unlawful result also disappear? If yes, then that conduct was the factual cause of the result. If no,
the conduct was not required so was not the factual cause of the result. The second version is
called the conditio cum qua non and is used for omissions. It involves a hypothetical addition so
we think in X’s omission. If X did act, does the unlawful result disappear? If the answer is YES
and if unlawful result disappears, X’s omission is the factual cause.
In this case we would use the conditio sine qua non as it involves a commission. When applying
the conditio sine qua non test in respect to Sipho, but for Sipho's conduct (the shooting) would
the unlawful result still occur. If we hypothetically remove Sipho's conduct Maggie's would not
have had the injury in her stomach, her heart would not have had to work so hard and the
unlawful result of Maggie's death would also disappear. Therefore, Sipho is the factual cause of
the death.
In the case of Makali, the issue before the court was whether the knife attack was the factual
cause of the death suffered by V after a heart attack and loss of blood. When the court applied the
conditio sine qua non test the court found that but for the knife attack V would not have had a
heart attack and died. Therefore, the knife attack was the factual cause of the death.
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