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Fault (1) - Coggle Diagram
Fault (1)
Negligence (culpa)
Conscious negligence (luxuria) arises when the accused foresaw the possibility, but did not reconcile themselves with it and thus cannot be found to have dolus eventualis
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If the accused's conduct deviates from that expected of a reasonable person, then they are guilty of negligence.
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Negligence is the lesser form of fault and it enquires whether the reasonable person would have foreseen the prohibited conduct or consequence and thus would they have taken steps to guard against this.
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The test for this is objective and the accused's conduct is tested against the standard of the reasonable person.
The point of departure is the measure against the standard of the reasonable person, however it is questioned whether all people can be measured against this - some people know more than the average person, and some know less
Most crimes with regard to this are statutory crimes, however the only common law crimes with regard to this are culpable homicide and contempt of court.
The reasonable person test:
- Questions whether the reasonable person would have foreseen the prohibited act or consequence under the specific circumstances.
=> See S v Van der Mescht
=> See S v Van As
- The court also takes into account whether the reasonable person would take steps to prevent certain consequences based upon cost, or probability of the consequence materializing.
- It is assessed whether the accused deviated from the standard of the reasonable person.
There are certain circumstances in which the accused's personal skills are taken into account, such as medical negligence, where a surgeon would be compared to the reasonable surgeon and not the reasonable person.
If the person has less knowledge or experience than the reasonable person then the standard can be lowered, but only in the case of youth and here the standard of the reasonable child of the same age would be used (this is presupposing criminal capacity)
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There are various approaches with regard to considering subjective factors
- Burchell favors the objective approach and says that the subjective factors should be considered in terms of capacity
- Snyman agrees that it should be such in most cases, but in exceptional circumstances the subjective standard should be considered.
Intention is generally the more severe form of fault, however it is questioned whether negligence and intention can overlap
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Ignorance and mistake
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For legal purposes, ignorance and mistake are the same thing
The requirements of intention is that one directs their will towards committing an act, and that one acts with certain knowledge
The definitional elements are:
- The punishable conduct
- Causation occurring in the manner foreseen
- Knowledge of the unlawfulness of their conduct
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The defense of ignorance is also applicable when the accused genuinely does not know that their conduct is illegal. This results in the accused lacing consciousness of wrongfulness
The requirements for mistake are:
- It was bona fide - the mistake was made in good faith
- It does not have to be a reasonable mistake
- It can be either a mistake of fact or a mistake of law
- It must be an essential mistake - the mistake must relate to one of the elements of the particular crime (non-essential mistakes include mistakes about motive, error in objecto, where the mistake relates to the object of the crime, and abaratio ictus, where the blow goes astray
=> South African law used to have transferred intent in this regard, but now a subjective test questions whether it would be foreseen that the other would be affected
In South Africa, ignorance of the law is a defense as consciousness of wrongfulness is necessary for intention. This is only applicable post 1977.
There are objections based on the ability to probe the subjective test, the idea that the law is sanctioned by the state and not by those that choose which laws to follow, that it is an easy defense to claim ignorance and the opening of the flood gates as everyone will want to use the defense
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If the accused had consciousness of wrongfulness, but was under the impression that their conduct was not in fact unlawful, when it was, this would constitute putative grounds of justification. This is a person who subjectively believes they comply with the ground of justification, but in reality they did not.
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Intention (dolus)
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The accused must have had:
- Knowledge of all the material definitional elements of the crime for which they are charged. They must have knowledge of:
=> The particular conduct in which they engaged
=> The causal link between their conduct and the consequence.
=> The unlawfulness of their conduct (consciousness of wrongfulness)
- Direction of will towards the prohibited act or causing the prohibited consequence
The legal definition of intention is a wide one where an accused can intent something without desiring it.
The state must prove intention and there are three types:
- Dolus directus
=> The prohibited act or consequence is the main aim and object of the accused
- Dolus indirectus
=> The prohibited act or conduct will (it is certain) materialize if the main aim or object is to be achieved
=> See S v Mshumpa
- Dolus eventualis
=> The prohibited consequence of conduct is not the aim of the accused, but the accused foresaw the possibility (it is not certain, but it is possible) of the prohibited consequence materializing and carried out the conduct anyways.
=> The requirements are:
- The accused must have foreseen the possibility of the prohibited consequence occurring.
=> See S v Pistorius
=> See DPP, Gauteng v Pistorius
- The consequence must have occurred in the manner in which the accused foresaw it occurring (this only applies to dolus eventualis)
=> See S v Goosen
=> See S v Masilela
- The accused recklessly reconciled themselves with this
=> See S v Humphreys
=> See S v Maritz
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If the accused foresaw that a specific individual will be the victim of the prohibited conduct or consequence (no matter if this prohibited conduct or consequence arises out of any of the dolus) then they will have dolus determinatus
Motive is independent from intention - the latter is the accused's aim, while the former is the reason why the accused had such an aim.
Otherwise, the accused has dolus indeterminatus if there is no specific victim in mind
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Strict liability
The exceptions to this are such as the versari rule where an accused can be held liable for the secondary consequences of an illegal action
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This does, however, undermine the idea of no liability without fault
Certain statutory crimes have been promulgated, however, which need no fault. These are generally public welfare laws
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For the courts to interpret whether a statutory crime is a strict liability offense, they must look at the wording of the provision and the scope and object of such. The more severe the punishment, the less likely the courts are to find that a crime is one with strict liability.
It can be argued that it is unconstitutional to impose strict liability as it could contravene an accused's right to equality and fair trial.
In terms of punishment theories, strict liability does not conform to the idea that a person is punished due to blameworthiness. The solution is to take the middle ground and apply liability based upon negligence and not strict liability
Vicarious liability
Vicarious liability is different as the accused has no involvement what so ever in the conduct. This is generally in the case of an employer / employee relationship.
E.g. If one is the owner of a liquor license and the barman sells to a minor, then the employer could be held liable in terms of vicarious liability - if the agent is acting in the scope of their employment, then the employer can be held liable.
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Generally one cannot be held liable for another's crime, however, in common law an accused can be held liable for something another has done if the accused was involved in the group or if the accused authorized or encouraged the other to do it.
Once again, parliament can impose such a form of liability and the court must try to figure out the intent of the legislature. If the employee is still working within the scope of their employment and does something which they are not sanctioned to do, the employer can still be held liable unless they have expressly told them not to.
Vicarious liability is similar to strict liability, however, here an accused has not done anything at all, but they are being held liable for the conduct of another.
In terms of fault, there is intention and negligence - the test for intention is a subjective one, while the test for negligence is the standard of the reasonable person.
Linking to this, ignorance of the law is an excuse in South Africa under very particular circumstances.
The idea of a guilty mind links with the punishment theories as one must know or foresee that their actions are wrong and thus there can be just dessert or deterrence.
The underlying presumption under criminal law is free will and thus when someone has been certified to have criminal capacity, they can be held at fault for their conduct.