PBL 420
Criminal Law
University of Pretoria
,STUDY UNIT 1: INCOMPLETE CRIMES
General
• There are three incomplete offences/ inchoate offences
o Attempt;
o Conspiracy; and
o Incitement
• Thus far we have only dealt with criminal liability where the crime was completed – e.g. X
murdered Y
• It is, however, NOT only completed crimes that are punished but also cases where X attempted to
complete the crime or incited another to commit the crime or conspired with another
o Criminal law does NOT only punish complete crimes but also punishes
preceding/anticipatory conduct – things that happen in anticipation of a completed crime
• The rationale for its existence can be traced back to the preventative theory of punishment as well
as the retributive theory
o Retribution theory – mere thoughts are NOT punishable – damage/real prejudice required –
talio principle
o Actually part of rehabilitation theory, prevention and deterrence
• Why does the law punish incomplete crimes?
o It leads to better law enforcement – the police will NOT have to wait until the victim is dead
before they can arrest
o People who commit these incomplete crimes pose as much danger to society as do those
who commit completed crimes
• PUNISHMENT:
o Punishable with the same sentence as though the crime has been completed
o In practice, however, usually more lenient sentence as the completed crime – theory of
retribution
• Incomplete crimes are independent crimes
o Incomplete crimes are FORMALLY DEFINED crimes – the result or consequence is irrelevant
– the conduct itself is punished
• These crimes do NOT exist in the abstract but always with reference to the commission of a specific
offence
o It means one can never be guilty of ATTEMPT only – it is always “attempted murder” or
“incitement to fraud” or “conspiracy to commit high treason”
• Incitement, then conspiracy, then attempt, but attempted incitement and attempted conspiracy
possible
o Can be guilty of an attempted conspiracy to commit murder or conspiracy of incitement to
commit rape
• Also often referred to as anticipatory crimes – In anticipation of the commission of the main crime
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,Attempt
General
• Rationale – retributive theory
• Punished in terms of Rioutous Assemblies Act 17 of 1956 – section 18(1) – Mere thoughts are NOT
punishable – X must perform some act to complete the crime
o Section 18(1) – Any person who attempts to commit any offence against a statute or a
statutory regulation shall be guilty of an offence and, if NO punishment is expressly
provided thereby for such an attempt, be liable on conviction to the punishment to which a
person convicted of actually committing that offence would be liable
• Can receive same punishment as completed crime
• X first INCITES then CONSPIRES then ATTEMPTS
Forms of Attempt
• Completed Attempt:
o X does everything from his side but
o Due to lack of skill; or
o Lack of foreseeability; or
o Other unforeseen occurrence/event/hindrance/obstacle
o The intended consequence does NOT ensue / the crime is NOT completed
o X has done everything that he wanted to do, to commit the crime, but then the crime is
never completed
o Subjective approach – look at X’s intention – punish the guilty state of mind
o Note the test is NOT has he done everything he could have done
o Example – I am short of money and write a letter to you saying NO one will pass criminal law
unless you give me R 500. Due to a strike at the post office the letter never reaches you. I
have done everything I wanted to do. But the crime is never completed.
o Laurence 1975 (4) SA SA 825 (A)
▪ Laurence was a journalist in Johannesburg
▪ He conducted an interview with S
▪ S was a so called “prohibited person” (terrorist)
▪ Laurence writes an article based on that interview with the prohibited person
▪ He then mails the letter to his friend in London, C.
▪ He arranges for C to take the article to L
▪ L is a journalist working for a UK newspaper – “The Observer”
▪ BUT before C could give the article to L the article is intercepted by the police.
▪ Based on these facts: Laurence = guilty of a completed attempt to contravene the
Suppression of Communism Act
▪ Why is it a completed attempt? Because Laurence has done everything that he
wanted to do
o Mshumpa 2008 (1) SACR 126 (E)
▪ On Valentine’s day February 2006 in Southernwood East London, Melissa Shelver
and David Best saw the gynaecologist because Melissa was 8 months pregnant with
Baby Jenna-May
▪ As they got into their car, the accused got into the back seat and threatened him at
gun point to drive
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, ▪ David was wounded in the shoulder and the accused shot Melissa twice in the
stomach, the baby was still born
▪ David was ALSO involved with Tanya Jacoby – that is why he wanted to get rid of the
baby, so that he could have his relationship with Tanya
▪ David therefore staged the whole thing and paid the accused to shoot the baby
▪ Mshumpa and David Best were both guilty of completed attempted murder on
Melissa
▪ Mshumpa got 15 years imprisonment, David Best got 21 years imprisonment
▪ They had done everything they wanted to do to Melissa.
• Incomplete Attempt:
o 2 forms:
▪ Interrupted attempt
• Objective approach – we look at it from an outside perspective to decide
whether it was an incomplete attempt
• Distinction is made between acts of preparation and acts of
consummation/execution – as stated in R v Schoombie “the end of the
beginning or the beginning of the end” distinction necessary; only acts that
have gone over onto acts of consummation are punishable as attempt – wide
interpretation and factual assessment
• When an act of preparation will enter the realm of becoming an act of
consummation is a factual inquiry – only acts of consummation are
punishable
• Example X wants to set fire to his office building – when he merely buys the
explosives or matches it still amounts to acts of preparation, but the moment
he wants to light a match and is interrupted by the police his acts have
moved to acts of consummation
• Factors to distinguish between preparation and consummation:
o Physical proximity between X and the scene of the crime
o The lapse of time between when X was arrested and when the crime
would have been completed
• Schoombie 1945 AD 541
o Schoombie owned a shop in Pretoria West in Church Street
o He wanted to burn down the shop to defraud the insurance company
o Schoombie went to the shop and poured petrol on the door and
underneath the door
o He had a tank with a candle in it.
o Just before he could light it, he was arrested by constable Elias
o On these facts, Schoombie is guilty of attempted arson
o Why? Because he was already busy with acts in execution
o We know this by applying the two factors
▪ Proximity – he was already there at the shop
▪ It was a matter of seconds before he would have completed
the crime
o Court held that the moment an act of preparation becomes unlawful
it becomes an act of consummation
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,• Du Plessis
o A man wrote a book about the revolution war that contravened the
Official Secrets Act.
o He sent the book to the legal advisors and it was intercepted by the
police.
o The court held that in determining whether an act is one of
consummation an objective/factual enquiry needs to be done into the
particular facts of the case and the following factors need to be
considered:
▪ If at the time of the interruption the accused had the intention
to commit the crime;
▪ The degree of proximity or remoteness that the conduct had
to what would have been the final crime; and
▪ A factual consideration
o Court held that by sending the manuscript to the legal advisors he
voluntarily withdrew publishing the book and this interrupted his
attempt
o Question: at what stage can an accused still voluntary change his
mind and NOT be criminally liable?
▪ Court held that if a person voluntarily withdrawals before the
act becomes an act of consummation such an act is NOT
punishable as an attempt.
▪ However, once the person has started with the act of
consummation and then withdrawals it will be too late, and
they will be guilty of an attempt to commit a crime
o When does it go over to an act of consummation?
1. Factual enquiry
2. All the circumstances of the case—wide interpretation
3. The accused made up her mind to commit the crime (intention
must be there at the time of the interruption)
4. The proximity (or remoteness) of the arrested conduct and the
intended final conduct (TIME and CONDUCT)
5. Practical considerations of common sense (natural
consequences, and control over situation?)
6. NO more precision than this will be achieved
7. If voluntary withdrawal—look at final intention before
withdrawal—if NO such intention then NOT consummation and
thus NOT attempt
8. We look at a series of acts, if NOT interrupted, it would lead to
the final intended result
• Nango 1990 (2) SACR 450 (A)
o A few policemen were looking for a group of criminals
o The policemen entered an empty building.
o Suddenly they were overpowered by a group of 20 – 30 criminals.
o One policeman, Welgemoed, fell down
o Nango went and stood over Welgemoed with an axe
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, o Just before he could harm him, Welgemed’s friend shot Nango and
wounded him
o Nango is guilty of attempted murder
o He was interrupted, he did NOT do everything he wanted to do.
o Why? He was busy with acts in execution
o How do we know that? Apply the 2 factors.
▪ Proximity – he stood over his victim
▪ Time lapse – if the buddy fired the shot seconds later W would
have been dead.
▪ Voluntary withdrawal
• Where X voluntarily decides to desist from plans – X wants to commit
housebreaking and enters the key in the door but then decides to abandon
the plan – courts are sceptical to this as a defence
o Subjective test – punish evil intention manifesting in the act
o Objective test – more than mere intention + deed must be damaging/prejudicial
• Impossible Attempt:
o Subjective test: “the mind/intention of the perpetrator”
o Impossibility can be due to the object – example – X tries to murder a corpse – we look at
X’s subjective state of mind
o Impossibility can also be due to the means employed – X tries to shoot with a toy pistol
o X will still be guilty of attempt – Davies
o Davies 1956 (3) SA 52 (A)
▪ Decided to follow a subjective approach, to punish X’s guilty state of mind
▪ Davies was a medical doctor, practicing in Springbok
▪ Davies wanted to abort the live foetus of a pregnant woman
▪ Davies did NOT know that the foetus was already dead
▪ One CANNOT commit abortion on a dead foetus
▪ The impossibility was therefore in the victim
▪ Davies – still guilty of attempted abortion
▪ Why? We punish his subjective state of mind
▪ NB – if the woman was NOT pregnant at all but he thought she was and was going to
abort the live foetus – the decision would have been the same. Because we punish
the subjective state of mind
▪ Most NB to say for this case: He thought the foetus was alive
o Distinguish between factual or physical impossibility:
• It is sanctionable attempt if there are an act + evil intent to commit and
existing crime, but as a result of the specific circumstances it is NOT physically
possible to commit/complete the crime – physical or factual impossibility
with respect to means/object
• Example: X (with evil intention) thinks that he has killed a live human being –
in reality X shot a corpse – assessed, objectively one CANNOT murder a
corpse (after all, murder is the unlawful + intentional killing of a living human
being) – was it NOT for the physical/factual impossibility with respect to
object, the crime of murder would have been committed/completed by X;
• The test for this form of attempt remains subjective – X’s evil intention makes
him liable on attempted murder!
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, o 2 exceptions where X will NOT be guilty of attempt – impossible attempt NOT punishable –
Davies:
1. Putative crime (legal impossibility) – nullum crimen sine lege:
• It will NOT be attempt to commit the impossible where X attempts to commit
a crime which does NOT exist/has NO legality even if he thinks that his
conduct does amount to a crime
• E.g. X attempts to commit adultery or sodomy (these are NO longer crimes)
even if X mistakenly believes that there is such a crime
• It is legally impossible to convict X of a crime that does NOT exist – this is the
case in common law/statutory law – NOT liable
• It is NOT a putative crime if you shoot someone in the heart but they are
already dead because there is a crime like murder.
• That will therefore be attempted murder and you will still be guilty.
• The key is to identify whether such a crime exists.
2. Statutory crime so formulated as to exclude liability for attempt
• Some legislation is drafted specifically stating that if a person attempts to
commit a crime in terms of that specific Act there is NO liability for an
attempt
Tests of Attempt
• Subjective test applies to: Completed attempt and impossible attempt
• Objective test applies to: Incomplete attempt
Special Cases
• Robinson 1968 (1) SA 666 (A)
o A, B and L agree that R will kill A and share in the life insurance profit
o At the last moment A changed his mind
o B and L were only guilty of attempted murder because they wanted to kill A with his consent
o R pulled the trigger and he was guilty of murder
o But when A withdrew his consent at the last minute, that interrupted B and L, and therefore
they were only guilty of attempted murder
• Ndlovu 1982 (2) SA 202 (T)
o One can be guilty of attempted possession of dagga
o If you are arrested before you can get control over the dagga
• Ntanzi 1981 (1) SA 477 (N)
o There is NO such thing as an attempt to commit culpable homicide – culpable homicide is a
crime of negligence
o One CANNOT attempt to be negligent
o Ntanzi negligently exceeded the bounds of private defence and injured his victim
o If you are negligent you CANNOT be guilty of attempted murder – remember the crime of
murder requires intention
o If you negligently injure, there is nothing criminal law can do (but remember there are still
civil remedies)
• Nyalungu and Phiri
o X can be convicted of attempted murder where he/she is aware of his/her HIV status and
engages in unprotected sex with Y – dolus eventualis is sufficient
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,Incitement
Definition
• Punished in term of S 18(2)(b) of Riotous Assemblies Act 17 of 1956
o Prohibition of incitement
o “Any person who . . . incites, instigates, commands or procures any other person to commit
any offence, whether at common law or against a statute or regulation, shall be guilty of an
offence and liable on conviction to the punishment to which a person convicted of actually
committing that offence would be liable.”
• Independent crime
• Snyman definition: Incitement exists where one person incites, instigates, or procures another to
commit a crime
• Nkosiyana definition: He who reaches and seeks to influence the mind of another to the
commission of a crime
• Incomplete; anticipatory; substantive offence
• Should only be charged with if the crime is NOT completed / actual crime never took place
o One is only charged with incitement only if the murder is NOT actually committed
(incomplete crime). Why? Because once the incitee commits the murder, there is a
completed crime and the inciter becomes a participant/accomplice in it
Incitement/Participation
• Milne en Ehrleigh (7) 1951 (1) SA 791 (A)
o M and E were managing directors of a company
o Their company acted as secretary to a group of other companies
o M and E told one of their employees, Percy Granton to make certain entries into the sales
journal
o The entries which Percy had to make were false but he did NOT know it
o Therefore, Percy Granton, the incitee did NOT have mens rea
o M & E were charged with incitement to commit theft of shares
o M & E were found to be NOT guilty of incitement to theft. Why not? Because of the so-
called Milne & Ehrleigh rule:
▪ Where the inciter (A) knows that the act which he incites the incitee (B) to commit
would NOT constitute a crime on B’s part because B (the incitee) lacks mens rea,
there is NO incitement
o This case was wrongly decided – the emphasis must be on the inciter’s state of mind NOT
the incitee’s state of mind
o Milne en Ehrleigh = wrongly decided – we follow Nkosiyana
• Nkosiyana
o Facts:
▪ A plot to assassinate the president of the Transkei was exposed.
▪ N, the inciter, was trapped in a police trap.
▪ N was charged with the incitement to commit murder.
o Held:
▪ The test to be applied is the subjective mind of the inciter.
▪ Element of persuasion is NOT required
▪ N was convicted of the charge.
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, Inciter Incitee
• Definition: one who reaches and seeks to • Conduct and intention NOT important
influence the mind of another to the • Immaterial whether there was persuasion
commission of a crime (S v Nkosiyana) /unwillingness;
• Test: emphasis on the conduct and intention • May be a police trap who simply wants to trap
of the inciter inciter with NO intention to commit crime
• Element of persuasion NOT required (Nkosiyana);
o Incitee need NOT have offered any • If culpability is lacking /unaware that the act
resistance that he is incited to commit is a crime, then
• Means used to influence incitee are NO incitement; but inciter may be guilty as an
immaterial – Can be express or tacit – X indirect perpetrator (Milne & Erleigh)
should however NOT be vague – description
of crime and victim/object should be clear
• Does NOT come to knowledge of incitee, then
only attempt
• Must consciously seek to influence incitee to
commit crime
o Thus, it is NOT possible to
accidently/unknowingly incite
someone to commit a crime
• Can only be committed intentionally
• The act of incitement:
1. Influencing another to commit a crime
▪ X must come into contact with Y and influence or seek to influence Y verbally or by
conduct to commit a crime
▪ Nkosiyana 1966 (A): “An inciter is one who reaches and seeks to influence the mind
of another to the commission of a crime”.
▪ Incitement is a formally defined crime as the crime is completed the moment X
influences Y in some way to commit the crime
▪ No causal relationship between X’s words and any subsequent action by Y is required
▪ X’s liability does NOT depend on whether X indeed managed to influence Y to
commit a crime
2. Ways in which incitement may be committed
▪ The act of incitement may be explicit or implied
▪ E.g. when a prostitute makes a certain movement with her body in order to incite a
man to sexual intercourse (implied)
▪ The Appeal Court held in 1966 that an element of persuasion was NOT required
(Nkosiyana).
▪ I.e. there need NOT be initial unwillingness on the part of the incitee
▪ The focus is on the inciter’s conduct
3. Conduct that does NOT qualify as incitement
▪ X’s wishes or desires do NOT necessarily qualify as incitement neither does a
creation of a motive in Y to commit a crime
4. The concretisation requirement
▪ X’s words to Y should NOT be too vague.
▪ They must be sufficiently concrete or specific, so that Y will know what she is incited
to do.
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, ▪ X must express sufficiently concretely the description of the crime as well as the
identity of the victim or object.
▪ X can incite the general public or a group of persons.
5. Incitement by omission NOT possible
▪ X is NOT guilty of incitement if, for example, Y plans to commit a crime and X knows
this, but deliberately refrains from discouraging Y from committing the crime.
▪ However, X is guilty of incitement if he had a legal duty to act positively in the
circumstances and to advise Y against his planned action, such as where X is a police
officer.
• Intention:
o Incitement can never be committed negligently.
o The form of culpability required is intention.
o X must have the intention to come into contact with Y and to incite Y to commit the crime.
o Dolus eventualis is sufficient.
o It is impossible to incite somebody to commit a crime of negligence, such as culpable
homicide.
o X must believe that Y will have the required intention to commit a crime.
o E.g. If X asks Y to make a certain entry in a register, while X knows that the entry is false but
Y does NOT know this, and X knows that Y does NOT know this. X CANNOT be guilty of
incitement but rather charged and convicted as an indirect perpetrator if Y indeed makes
the entry, on the ground that X used Y as only an innocent instrument to commit the crime.
o X’s liability for incitement is limited to the incitement contained in her words of incitement.
o If Y commits a more serious crime NOT covered by X’s words of incitement, X is NOT liable
for the commission by Y of the more serious crime.
o Incitement can be initiated by the incitee.
▪ The incitee may ask the first question and the answer may be incitement by the
inciter.
o The fact that there is a condition attached to the incitement is irrelevant. E.g. ask the dean
to give me a raise and if he refuses, kill him.
• Incitement to commit the impossible – same as impossible attempt
o X can incite Y to commit the impossible
o E.g. X incites Y to put her hand in Z’s pocket and steal money from the pocket.
▪ X believes that there is money in Z’s pocket, but there is in fact NO money in it.
▪ X commits incitement to theft as the test is subjective.
• It is impossible to incite a person who lacks criminal capacity
o If X incites Y, who is mentally ill or a child lacking capacity, to commit a crime, knowing that
Y lacks criminal capacity, X does NOT commit incitement
▪ However, if Y does commit the act which she has been incited to commit, X may be
found guilty as an indirect perpetrator – somebody who commits the crime through
the instrumentality of another
o BUT if X subjectively but mistakenly believes that Y has criminal capacity the = attempted
incitement (attempt to commit the impossible)
• Attempt to commit incitement is possible – X posts a letter to Y inciting Y to commit a crime but the
letter is intercepted by the police
• Chain incitement – has NO bearing on X’s liability for incitement. i.e. X can incite Y1 to incite Y2 to
commit a crime
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