Title page for ETD etd-06232008-121535

Document Type Master's Dissertation
Author Nel, Pieter Willem
URN etd-06232008-121535
Document Title Toerekeningsvatbaarheid in die Suid-Afrikaanse Strafreg (Afrikaans)
Degree LLM (Public Law)
Department Public Law
Advisor Name Title
Prof J le Roux Supervisor
  • non-pathological criminal incapacity
  • criminal capacity
Date 2008-04-18
Availability unrestricted
This study addresses the principles applicable to criminal capacity in the South African legal system. Focus is drawn to non-pathological criminal incapacity as a complete defence to a criminal charge. Non-pathological criminal incapacity can be described as the temporary inability on the part of the perpetrator to appreciate the wrongfulness of the conduct and/or to act in accordance with this appreciation. This mental inability is due to factors which cannot be ascribed to a pathological condition or mental illness.

The study further investigates the application of the subjective and objective test as criteria for the defence of provocation and indicates the preferred test. The study also includes a discussion of the following aspects:

The study further investigates the application of the subjective and objective test as criteria for the defence of provocation Non-pathological criminal incapacity distinguished from pathological criminal incapacity

Non-pathological criminal incapacity distinguished from "sane" automatism

The role of amnesia in considering criminal capacity

The role of the expert witness in considering non-pathological criminal incapacity

Private defence versus battered woman syndrome and cumulative provocation

Criminal capacity and sentence.

In the South African law the defence of non-pathological criminal incapacity was considered on numerous occasions by the High and Appeal Court, though mostly unsuccessful. It is also clear that the South African courts confuse the issue and fail to differentiate between the defences of non-pathological criminal incapacity and "sane" automatism. The study indicates that the two defences, though different, coincide.

The South African courts increasingly raised the standard and requirements for a successful plea in an attempt to confine the popularity of the "new" defence of non-pathological criminal incapacity. A comparative study of the English and Canadian law indicates that provocation is only considered as a partial defence to murder, and only to reduce murder to manslaughter. The reasoning behind this was to evade the compulsory sentence of life imprisonment for murder by substituting it with a conviction of manslaughter where life imprisonment is not a compulsory sentence. The central question raised in this study is whether non-pathological criminal incapacity be a qualified and complete defence to any criminal charge in the South African law.

Finally the study is concluded with a crisp summary of every preceding chapter and valuable recommendations stemming from the research are made.

University of Pretoria 2007

E949 /ag

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