Chapter 13: Non-pathological Non-Responsibility

Introduction

Non-pathological non-responsibility has been recognised as arising out of severe emotional stress (traditionally known as the defence of ‘provocation’),[1] intoxication,[2] or a combination of these factors.

The defence consists, in theory, in the absence of either one of the functions required for capacity: the ability to appreciate the wrongfulness of one’s conduct or the ability to act in accordance with that appreciation. A common example of a state of severe emotional stress which may exclude responsibility is that of a person who discovers his/her spouse in an act of adultery.[3]

As may be noted from the discussion regarding the development of the defence,[4] no qualifying mental state is required. ‘Non-pathological’ criminal incapacity may, supposedly, arise from any cause or mental state whatsoever.[5]

‘Provocation’ in England and the USA

The defence of provocation (as it is known) in England, if successful, reduces a possible murder conviction to one of manslaughter. It is contained in sections 54 and 55 of the Coroners and Justice Act 2009.[6] Section 54 provides:

(1) Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if —

(a) D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control,

(b) the loss of self-control had a qualifying trigger, and

(c) a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.

(3) In subsection (1)(c) the reference to “the circumstances of D” is a reference to all of D's circumstances other than those whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self-restraint.

(4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge. …

The defence consists of a ‘subjective’ and an ‘objective’ element, both of which have proved controversial. The subjective element is that the accused must establish that s/he actually lost his/her self-control due to provocation. The objective element is that a ‘a person of D's sex and age, with a normal degree of tolerance and self-restraint’ would also have been provoked and would have acted, to the same extent, as the accused did.

The defence was contained, for a long time in s 3 of the Homicide Act of 1957,[7] qualified by the definition of provocation in R v Duffy,[8] even though the Duffy definition was superseded by the definition contained in s 3 of the Homicide Act of 1957. On appeal before the Court of Criminal Appeal in Duffy, Lord Goddard CJ endorsed the definition of provocation offered by Devlin J in his jury instruction in the trial court, as follows:

Provocation is some act, or series of acts, done (or words spoken) which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not the master of his mind.[9]

In the US, the law on provocation (as it is known) refers to a defence which entitles an accused to be convicted of voluntary manslaughter if the killing s/he committed was in the ‘heat of passion’, was caused by ‘adequate provocation’, and was committed before a reasonable ‘cooling time’ had expired.[10] The defence is primarily concerned with excluding ‘malice aforethought’, the presence of which would lead to a murder conviction. Malice aforethought manifests in a cool deliberate killing which may be excluded by rage.[11] It is a defence which applies ‘... to those instances in which people act without thinking ...’.[12] As in the English law, the defence includes subjective and objective elements.

Subjective element in England

The subjective element in English law is that the accused must have been provoked and lost her/his self-control. Under the influence of Duffy’s case, and until the new defence was enacted,[13] the defence required that the loss of self-control must be ‘sudden and temporary’.[14]

Decided under the ‘old law’ of provocation, the cases of Ahluwalia[15] and Thornton[16] affirmed the requirement, from Duffy, that the provocation must be ‘sudden’. Both cases concerned women who killed their violent and abusive husbands. The defence seems to have failed (in both cases) because an inference was drawn, based upon the time delay, of deliberation.[17] The cases established that the longer the time period that expires between the provocation and the conduct of the accused, the less likely it becomes that the defence will succeed. Apparently then, to succeed, provocation must have prevented the accused from deliberating. As discussed above, this approach appeared to conflate cognitive and conative functioning.

Under the new law, the provocation need not be ‘sudden’ and appears to have resolved the problem which followed on the requirement that the loss of control must be sudden. However, the new law contains the proviso that the defence cannot succeed where it if the accused ‘acted in a considered desire for revenge’. It is not clear whether this qualification will not counteract the release of the defence from the requirement of a ‘sudden’ loss of control.[18] Again, at the very least, this requirement seems to redirect the enquiry back to a cognitive concern. Beyond that, one must wonder why it should be impossible to claim a loss of control where one has lost control even if motivated by vengeance.

Subjective element in the USA

The requirement that the killing be committed during the ‘heat of passion’ refers to the emotional disturbance that the accused must have experienced.[19] The accused must, on account of his/her emotional state, have lost control of her/his ordinary restraints. This is a subjective enquiry. The concept of ‘passion’ is not limited to anger but includes fear,[20] jealousy,[21] and ‘wild desperation’.[22] The court in Borchers quoted a dictionary, with apparent approval, defining passion to include any ‘violent, intense, high-wrought, or enthusiastic emotion.’[23] Also, subjectively, the accused must act before s/he has cooled off.[24] This requirement restricts the defence to acts which are sudden and immediate to the provocation. It has been somewhat relaxed in that it has been accepted that some time may pass between the provocation and the killing. In Berry[25] the accused lay in wait in the victim’s apartment for some 20 hours after being provoked for the very last time. As noted above,[26] the defence of provocation is restricted ‘... to those instances in which people act without thinking ...’.[27] Again, the point must be observed that this approach appears to conflate cognitive and conative functioning.

Objective element: the Reasonable Person

The objective elements of the English and US approaches require that beyond having actually lost self-control, a ‘reasonable person’ would also have lost control. This requirement is obsolete in our law since it turned away from the English approach in 1971.[28]

This objective standard is concerned with a comparison of the accused’s conduct in his/her state of lacking self-control, with a standard of a reasonable person. Padfield asks the obvious and yet profound question: ‘[W]ho is the reasonable man?’[29] The relevance of the brief discussion that follows is to see that the US and England struggle with the question of how to construct the test of the reasonable person so as to be fair. Notably the discussion continues at the level of what characteristics of the accused to attribute to the reasonable person.

Anglo-American common law identifies the reasonable person as being of average disposition,[30] not exceptionally belligerent,[31] sober,[32] of normal mental capacity.[33] While it appears agreed that the age and sex of the accused will be attributed to the reasonable person,[34] ‘mental infirmity’ may not be attributed.[35] However, in Humphreys[36] and Dryden[37] the court directed that an accused’s traits and characteristics, which may even amount to a psychological illness or disorder, should be attributed to the reasonable person.

In 2000 in the case of Smith,[38] the English House of Lords sought to take a definitive step towards resolving the confusion which reigned in English law. It is debatable whether they succeeded.[39] It came very close to obliterating the objective standard of the reasonable person specified in s 3 of the Homicide Act.[40] The defendant (accused) had killed a friend during a heated quarrel over some stolen tools. The defendant suffered with severe clinical depression. The question arose whether this depression could be attributed to the reasonable person against whose conduct the defendant’s conduct was to be compared. The majority of the court held that ‘everything’ was to be taken into account in that the issue was ‘what could reasonably be expected of a person with the accused’s characteristics’.[41] On the contrary though, it cautioned that certain characteristics are not to be taken into account: male possessiveness and jealousy, obsession, a tendency to violent rages or childish tantrums, violent disposition, quarrelsome or choleric temperament, drunkenness or other self-induced lack of control, exceptional pugnacity or excitability.[42] Thus, while permitting ‘all’ characteristics to be taken account of, it excluded from consideration those characteristics which are especially likely to undermine the accused’s self-control.[43]

Significantly, in Weller[44] the jury was permitted to take account of obsessiveness and jealousy, contrary to the instructions of Smith.[45] The court in Rowland[46] held that clinical depression could be taken account of, but emphasised that self-intoxication could not; nor could ‘an unusually volatile, excitable or violent nature’. Again, the problem is that this attempts to permit a consideration of subjective characteristics of an accused, but excludes a consideration of those which may have a particular bearing on self-control.

Clarkson laments: ‘Possibly the only thing that commentators agree upon is that the present law is little short of a mess.’[47]

Since then, the Coroners and Justice Act 2009 came into effect. As indicated above, the objective standard against which the accuse’d conduct is to be compared is that of ‘a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.’ Furthermore, that ‘the reference to “the circumstances of D” is a reference to all of D's circumstances other than those whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self-restraint.’

rve the problem of attempting to permit a consideration of subjective characteristics of an accused, but to exclude a consideration of those which may have a particular bearing on self-control.In the US, the defence requires that the provocation be adequate. This is an objective enquiry and is concerned with comparing the accused’s conduct with what is expected of a reasonable person. The concern here is with whether the reasonable person would (or may[48]) have lost her/his self-control in the circumstances of the accused at the moment of her/his conduct. The origin of this objective enquiry is the English law which defined adequate provocation as the amount that would excite ‘the mind of a reasonable man’.[49] From this standard, US courts distilled a number of fixed categories: aggravated assault or battery, mutual combat, commission of a serious crime against a close relative of the accused, illegal arrest, and, the often-cited instance of a husband catching his wife committing adultery.[50] In some states, only these fixed categories are recognised as presenting ‘legal adequacy’.[51] Only if the court finds that legally recognised adequate provocation existed, may it refer the matter to the jury for further deliberation.[52] This rather inflexible approach has been replaced in many states by leaving the matter of what is adequate provocation to the jury to be judged on a standard of what would enrage an ordinary person and deprive him/her of the ability to reflect, deliberate, or judge.[53]

As may be noted from the previous discussion, the problem of the standard of the reasonable person (with which conduct is to be compared) is what characteristics of the accused to attribute to the reasonable person.[54] This is the same dilemma that faces South African law in respect of the standard of the reasonable person in determining whether an accused was negligent.

Development of the Defence in South Africa

History of the Defence

South African law before 1971[55] followed an approach to what was known as the defence of provocation, which did not follow general principles. Specific rules were instead developed. These specific rules derived from England and are similar to those which pertain in England at present.

The English approach, discussed below, was imported into South Africa by the enactment of s 141 Transkeian Penal Code of 1886. The material provisions of s 141 read:

Homicide which would otherwise be murder may he reduced to culpable homicide if the person who causes death does so in the heat of passion occasioned by sudden provocation. Any wrongful act or insult of such a nature as to be sufficient to deprive any ordinary person of the power of self-control may be provocation, if the offender acts upon it on the sudden, and before there has been time for his passion to cool. Whether any particular wrongful act or insult, whatever may be its nature, amounts to provocation, and whether the person provoked was actually deprived of the power of self-control by the provocation which he received, shall be questions of fact.

The defence consists, as do the English and US defences, in a ‘subjective’ and an ‘objective’ element. As discussed above,[56] these requirements proved controversial. The subjective element requires that the accused establish that s/he lost her self-control due to provocation. The objective element is that an ‘ordinary person’ would also have been provoked and would have lost his/her self-control. Provocation was a partial defence - it reduced murder to culpable homicide (or in English terminology, it reduces murder to manslaughter).

As mentioned, in 1971, the case of Mokonto[57] represented a turning point for the law of provocation. The court confined the Transkeian doctrine (and thus the English conception) of provocation to the territory of Transkei. It adopted a more principled approach to liability where provocation has been raised. That is, where provocation is raised in defence against a murder charge, the court is required to consider whether, on the evidence presented, the prosecution has excluded all reasonable possibilities that the accused laboured under such emotional stress that s/he lacked the intention required. It also cautioned that provocation and emotional stress may prove, rather than exclude intention.

Recent Developments

Until 1981, South Africa only recognised criminal non-responsibility arising out of youth or mental illness or defect (as contemplated in s 78 of the Criminal Procedure Act 51 of 1977). In 1981 the Appellate Division in the case of Chretien[58] accepted that criminal incapacity may also arise out of intoxication. This development set the stage for other ‘non-pathological’ conditions to be regarded as incapacitating.

The first tentative step in this direction was taken by Diemont AJA in Van Vuuren.[59] Diemont AJA ventured the following dicta:

... I am prepared to accept that an accused person should not be held criminally responsible for an unlawful act where his failure to comprehend what he is doing is attributable not to drink alone, but to a combination of drink and other facts such as provocation and severe mental or emotional stress. In principle there is no reason for limiting the enquiry to the case of the man too drunk to know what he is doing. Other factors which may contribute towards the conclusion that he failed to realise what was happening or to appreciate the unlawfulness of his act must obviously be taken into account in assessing his criminal liability. But in every case the critical question is—what evidence is there to support such a conclusion?[60]

By 1990 the Appellate Division, in the case of S v Wiid,[61] accepted that criminal incapacity may arise out of severe emotional stress.

Eadie – The End of Non-pathological Incapacity?

The judgment of Navsa JA in Eadie[62] is undoubtedly now the touchstone of the law on non-pathological incapacity.[63] This decision has had a chilling effect on the practical availability of the defence, even though it remains available in theory.[64] Commentators have welcomed the decision, but have rejected the reasoning as unsound.[65]

Navsa does not consider the capacity for the appreciation of wrongfulness but focuses his judgment on the capacity for self-control. He limits claims of incapacity for self-control to automatism (involuntariness): ‘It must now be clearly understood that an accused can only lack self-control when he is acting in a state of automatism.’[66]

Snyman and Burchell criticise the judgement for failing to distinguish between capacity for self-control and voluntariness.[67] As discussed above, Snyman and Burchell argue that these two requirements of criminal liability are distinct and must not be confused. Upon analysis however, their submissions do not appear to offer a sustainable distinction. On the other hand, Louw endorses the view that these two requirements are indistinguishable.[68] As Snyman notes though,[69] Navsa is somewhat ambivalent as to the lack of distinction between these two requirements of criminal liability: he regards the two requirements as identical, and yet requires that both are retained.[70]

What appears to be the real problem with Navsa’s judgement is that he seems to assume that we are restricted to a defined, limited and rare phenomenon if only automatism is recognised as excluding capacity for self-control. However, Navsa does not observe the fierce controversy that reigns in respect of what signifies an automatism. He insists that anything short of automatism somehow allows for an excuse which would bring the administration of justice into disrepute where an accused has merely succumbed to temptation since ‘[o]ne has free choice to succumb to or resist temptation’.[71] Navsa’s comments merely beg the question - did a particular accused have ‘free choice to succumb to or resist temptation’?[72] What is most disappointing is that he does not even recognise the controversy that this question entails - it is the ultimate question of whether any human being, and in particular, the specific accused, has free-will.[73]

Navsa notes how courts have on occasion been too lenient:

The time has come to face up to the fact that in some instances our Courts, in dealing with accused persons with whom they have sympathy, either because of the circumstances in which an offence has been committed, or because the deceased or victim of a violent attack was a particularly vile human being, have resorted to reasoning that is not consistent with the approach of the decisions of this Court. Mitigating factors should rightly be taken into account during sentencing. When an accused acts in an aggressive goal‑directed and focused manner, spurred on by anger or some other emotion, whilst still able to appreciate the difference between right and wrong and while still able to direct and control his actions, it stretches credulity when he then claims, after assaulting or killing someone, that at some stage during the directed and planned manoeuvre he lost his ability to control his actions. Reduced to its essence it amounts to this: the accused is claiming that his uncontrolled act just happens to coincide with the demise of the person who prior to that act was the object of his anger, jealousy or hatred.[74]

One possible interpretation of parts of the judgement is that Navsa introduced an objective criterion into the enquiry into capacity, which was previously an entirely subjective enquiry.[75] Louw, for instance, identifies the following passage as indicating that ‘Navsa JA explicitly introduced an objective test in determining loss of control’:[76]

I agree that the greater part of the problem lies in the misapplication of the test. Part of the problem appears to me to be a too-ready acceptance of the accused's ipse dixit concerning his state of mind. It appears to me to be justified to test the accused's evidence about his state of mind, not only against his prior and subsequent conduct but also against the court's experience of human behaviour and social interaction.[77]

It would seem however that this passage, together with the rest of the judgment, does not introduce an objective requirement. This passage, as Louw himself states, identifies the misapplication of the subjective test as the problem.[78] Fortunately Louw does go on to state that a different approach can be argued. That is, that Navsa was concerned here to remind other courts to draw inferences carefully, particularly inferences concerned with an accused’s state of mind in which the accused’s own account will feature strongly.[79] Burchell refers instead to the passage in which Navsa states – in what appears to beg the question: ‘One has a free choice to succumb to or resist temptation.’ Burchell notes how this may possibly be interpreted to mean that our courts must now refuse claims of non-responsibility on policy grounds.[80] Instead Burchell,[81] concludes that Navsa was concerned here with how inferences should be drawn. Burchell goes even further:

The Eadie judgement did not, and from the point of view of precedent could not have, blatantly introduced hitherto non-existent objective elements into the defence of lack of capacity.[82]

Pantazis and Friedman[83] unequivocally identify Navsa’s concern as being that inferences of involuntariness should be carefully drawn. There appears no basis on which to conclude that Navsa intended to introduce any objective test for capacity. However, what is notable is that several commentators have argued that an objective normative component ought to be introduced into concerns with capacity.[84] These arguments will be endorsed and addressed below in the context of the proposed new form that the defence of non-responsibility ought to take.[85]

Ultimately, Navsa’s comments reduce to little more than an insistence that courts should not recognise incapacity unless there is incapacity.[86] His judgment begs the question as to when a lack of free will should be recognised. He has also not recognised that involuntariness is a concept which offers no more clarity than incapacity for self-control.[87] The judgment is at best unhelpful.

S v Ramdass

S v Ramdass[88] is – to my knowledge – the first case, at least at the level of the High Court, to find in favour of a claim of no-pathological criminal incapacity or a mixture of non-pathological incapacity and intoxication, since Eadie.

The facts of Ramdass were briefly that the accused had established a sufficient foundation for the absence of criminal capacity and that the totality of the evidence created a reasonable doubt as to his criminal capacity.

The accused had killed[89] his girlfriend and was found afterwards in Umhlanga Rocks. He claimed that he had no recollection of what had happened to the deceased or how he ended up in Umhlanga Rocks. He said, however, that he had been drinking alcohol the previous afternoon and had, in addition, smoked crack cocaine. If it was he who had killed the deceased then, he maintained, he did so without realising what he was doing and without the intention to kill her.

The accused’s defence amounted to a lack of criminal capacity in that the consumption of the alcohol and drugs had rendered him unable to appreciate the unlawfulness of his conduct or to act in accordance with such an application. As Ploos van Amstel J explained, this defence has been available to an accused in circumstances of severe intoxication since the decision in S v Chretien 1981 (1) SA 1097 (A)

Ploos van Amstel J (at [29]) was ‘conscious of the need for caution in finding too readily that a person who had killed someone is not criminally responsible because he acted involuntarily or without criminal capacity’, since, as Rumpff CJ recognised in Chretien, this may bring the administration of justice into disrepute. The judge concluded, however, that the accused had established a sufficient foundation for the absence of criminal capacity and that the totality of the evidence created a reasonable doubt as to his criminal capacity. Some of the evidence that prompted this finding included: evidence that their relationship was good and that the accused and the deceased were planning to marry; there was no evidence of a motive to kill her; he was regarded by those who knew him as a gentle and humble person, so that his conduct was completely out of character; the evidence relating to the consumption of alcohol and the smoking of crack cocaine; his amnesia following the incident; the fact that he was found in Umhlanga Rocks the following morning, made no effort to avoid those who were looking for him, and seemed genuinely to have believed that they were interested in some other matter unrelated to the murder of his girlfriend; and the fact that he had wanted to plead guilty until counsel advised him that, on his version, he might well not be guilty. There was, moreover, no expert evidence to suggest that it was likely that he killed her well knowing that what he was doing was wrong. He could, accordingly, not be convicted of murder.

However, we must ask whether, on the prevailing authority of S v Eadie ((1) SACR 663 (SCA)), the accused in Ramdass did indeed lack criminal capacity. S v Eadie is applicable to all claims of incapacity outside of a claim to pathological incapacity. It is therefore applicable to Ramdass. The following ratio – whether one agrees with it or not – is the prevailing law:

It must now be clearly understood that an accused can only lack self-control when he is acting in a state of automatism.[90]

It would appear from the judgement in Ramdass that the Court was not concerned with determining whether the accused was in a state of automatism. On the facts – as far as one may surmise - it seems difficult to reconcile the complex conduct of driving a motor vehicle safely for a considerable distance with being in a state of automatism – at least on the law as it is.

 

Non-pathological Incapacity versus Pathological (Mental Illness/Defect) Incapacity

The defence of non-pathological criminal incapacity is available where an accused lacks any of the relevant functions: the ability to appreciate the wrongfulness of his/her conduct and the ability to act in accordance therewith. As indicated above, the defence is not qualified by the requirement of any particular mental disorder or condition.

Defining the ‘non-condition’

No specific mental state or condition is required, except that the mental state of the accused must:

1.   not constitute a mental illness/defect – as defined by the Stellmacher definition;

deprive the accused of some functional capacity.

Our courts have accepted that such a condition may consist in an ‘emotional storm’,[91] ‘acting ... subconsciously’,[92] or a ‘total disintegration of the personality’.[93] The psychological/psychiatric foundation for these concepts is, however, left unexplained. As a result, confusion has followed. Louw notes:

[P]rior to the intoxication decision of S v Chretien 1981 (1) SA 1097 (A), the question of criminal capacity seldom arose in our courts. In fact, it was an inquiry usually limited to the mentally ill and to the very young. In the past 20 years it has shifted from the periphery of our law to a fully developed defence available to those who kill when provoked.

Despite this shift, its precise nature has not been clarified in law. This lack of clarity has been exacerbated by confusing decisions of our courts. This confusion is partly a result of the development of the defence of incapacity, particularly its extension to cases involving provocation and mental stress, and partly a result of its application in practice.[94]

Can some sort of defining criteria be identified?

Non-pathological

On the basis that the definition of the pathological mental condition required for a pathological incapacity defence is unclear, it is to be expected that the boundary between pathological and non-pathological non-responsibility will also be vague. So vague is the boundary that it is possible to conceive of a state of severe emotional stress as a pathological condition, in spite of any attempt to restrict pathological conditions to those arising from within.[95]

The Canadian case of Rabey v The Queen[96] illustrates how it is possible to regard a state of severe emotional stress as a disease of the mind (the Canadian equivalent of South Africa’s ‘mental illness/defect’). The male accused had attacked a fellow female student in whom he had developed a romantic interest. When he discovered that she did not reciprocate his romantic inclinations, he attacked her with a rock and tried to strangle her. He claimed that he had suffered severe emotional shock, was in a dissociative state, and lost control of his behaviour. The question arose whether his state of severe emotional stress constituted a disease of the mind or was to be regarded as a non-pathological condition. The court declared:

In my view, the ordinary stresses and disappointments of life which are the common lot of mankind do not constitute an external cause constituting an explanation for a malfunctioning of the mind which takes it out of the category of a ‘disease of the mind.’ To hold otherwise would be to deprive the concept of an external factor of any real meaning. In my view, the emotional stress suffered by the respondent as a result of his disappointment with respect to Miss X cannot be said to be an external factor producing the automatism within the authorities, and the dissociative state must be considered as having its source primarily in the respondent’s psychological or emotional make-up. I conclude, therefore, that, in the circumstances of this case, the dissociative state in which the respondent was said to be, constituted a ‘disease of the mind.’[97]

The judgment seems to turn on the notion of causation (an external or internal cause), which as noted,[98] is quite unhelpful. The condition of the accused constituted a disease of the mind according to the court on the basis that it had ‘its source primarily in the respondent’s psychological or emotional make-up’. This approach begs the question: where else could the source of a condition of severe emotional stress lay other than (primarily) in an accused’s psychological or emotional make-up? One may be reminded of the dilemma posed by the facts of Quick.[99] In Quick, if one identified his diabetes as the cause of the defendant using insulin, it would appear that a disease of the mind ought to have been recognised – contrary to the decision. Likewise in Rabey. If the rejection by his romantic interest was regarded as the cause, it would seem that – on the causation argument – a disease of the mind should not have been recognised. Again we see that the argument regarding the origin of a condition offers no real guidance. While the mental disorder requirement of pathological incapacity remains undefined, no clear distinction can be drawn between pathological and non-pathological non-responsibility.

Duration

Popular parlance distinguishes non-pathological from pathological (mental illness/defect) incapacity on the basis that non-pathological incapacity is temporary - hence the expression ‘temporary insanity’. However, our law has held the duration of the disorder not to be a relevant consideration in respect of whether a condition constitutes a mental illness/defect.[100] Therefore duration cannot distinguish the legal concepts of non-pathological from mental illness/defect incapacity.

Dysfunction and Deviance

Although no specific mental disorder is required, the mental state required must be such that the accused is dysfunctional; that is, lacks either or both of the abilities to appreciate the wrongfulness of his/her conduct, or to act in accordance therewith. This state of dysfunction represents a mental abnormality – on the law’s conception of what constitutes normal mental functioning: human beings possess free will and are capable of distinguishing between right and wrong and of resisting temptation to do wrong.[101] It is therefore dysfunctional and deviant. In psychopathology, dysfunction is a prominent consideration in identifying a mental pathology. Yet, our law does not recognise this as a mental illness/defect.

Conclusion

The English and US defence is a dual subjective objective test. The subjective component appears to conflate conative and cognitive functioning. The objective component appears to be stuck in the double bind regarding how to construct an objective standard (a reasonable person) that remains an objective standard, but is fair.

Following on the failure of our law to define the ‘pathological’ condition required for a pathological incapacity defence,[102] it follows that the distinction between pathological and non-pathological non-responsibility is ill defined. The leading case on non-pathological non-responsibility (Eadie) has only focused attention on the problem of when a particular accused lacks responsibility. There are regrettably no answers here – only unanswered questions.

 


[1] S v Van Vuuren 1983 (SA) SA 12 (A); S v Campher (1) SA 940 (A); S v Wiid 1990 (1) SACR 561 (A). While the defence is traditionally known as ‘provocation’, this label is a misnomer. It is rather the effect of provocation which is the foundation for this defence and not the provocation itself. Provocation is merely a cause of the state of interest: the state of anger, rage or fear, amongst others. Provocation is often seen to be distinct from severe emotional stress. Provocation is regarded as the offensive behaviour of another person, whilst severe emotional stress is regarded as arising from an adverse environment. No clear distinction exists in this regard in SA law (Burchell & Milton Principles of Criminal Law 2nd ed (1997) 288This point does not seem to be addressed in the latest edition of this text (Burchell Principles of Criminal Law 5th ed (2016)). Further it does not appear possible to draw a clear distinction between the conduct of human agents and the environment.  People live in environments which seem best understood as composed partly, but inextricably, of other people. Ultimately, since it is the emotional state which is of interest, the source of the state should be regarded as irrelevant (Burchell & Milton Principles of Criminal Law 2nd ed (1997) 288).  Hence the concept of severe emotional stress will be preferred and employed here to refer to an emotional state, induced by stress of any origin, which may render an individual not responsible. It is this state which has been held by our courts to deprive a person of criminal capacity in certain circumstances.

[2] S v Chretien 1981 (1) SA 1097 (A).

[3] Burchell Principles of Criminal Law 5th ed (2016) 327note5; Smith, Laird, Ormerod & Hogan Smith and Hogan's Criminal Law (2015) 520; Dressler Understanding Criminal Law 2nd ed (1997) 491.

[4] See Development of the Defence in South Africa on page 163ff.

[5] Burchell Principles of Criminal Law 5th ed (2016) 328.

[6] Smith, Laird, Ormerod & Hogan Smith and Hogan's Criminal Law (2015) 506ff.

[7] As follows: ‘Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on the reasonable man.’

[8] R v Duffy [1949] 1 All ER 932.

[9] Ibid 932.

[10] LaFave Criminal Law Abridged 4 ed (2003) 755ff.

[11] D. T. Skelton Contemporary Criminal Law (1998) 64.

[12] Hall Criminal Law and Procedure (1992) 117.

[13] In terms of s 54 & 55 of the Coroners and Justice Act 2009, set out under the heading ‘‘Provocation’ in England and the USA’ on page 157ff.

[14] R v Ahluwalia [1992] 4 All ER 889; R v Thornton (No 2) [1995] 2 All ER 1023; Clarkson Understanding Criminal Law (2005) 124.

[15] R v Ahluwalia [1992] 4 All ER 889.

[16] R v Thornton (No 2) [1995] 2 All ER 1023.

[17] D. Bloy Criminal Law: Lecture Notes 2nd ed (1996) 190; Ormerod Smith & Hogan Criminal Law (2005) 448-9.

[18] Smith, Laird, Ormerod & Hogan Smith and Hogan's Criminal Law (2015) 510ff

[19] LaFave Criminal Law Abridged 4 ed (2003) 777.

[20] LaPierre v State 734 P.2d 997, 1001 (Alaska Ct App. 1987).

[21]  People v Berry 556 P. 2d 777, (Cal. 1976).

[22] People v. Borchers 325 P.2d 97, (Cal. 1958).

[23] Ibid 102.

[24] Ibid 787-8.

[25] People v Berry 556 P. 2d 777, (Cal. 1976).

[26] ‘Provocation’ in England and the USAon page 157ff.

[27] Hall Criminal Law and Procedure (1992) 117.

[28] Discussed on page 163.

[29] N. Padfield Criminal Law (1998) 158.

[30] Maher v. People 10 Mich. 212 (1862).

[31] Mancini v Director of Public Prosecutions [1941] 3 All E.R. 272.

[32] Regina v McCarthy [1954] 2 All E.R. 262.

[33] Rex v. Lesbini [1914] 11 Crim. App. 7.

[34] R v Camplin [1978] 2 All ER 168;R v Morhall [1995] 3 All ER 659.

[35] Luc v The Queen [1996] 2 All ER 1033- though the court was not unanimous in this finding.

[36] R v Humphreys [1995] 4 All ER 1008.

[37] R v Dryden [1995] 4 All ER 987.

[38] R v Smith [2000] 4 All ER 289, [2000] Crim LR 1004, HL.

[39] Clarkson Understanding Criminal Law (2005) 127.

[40] Ibid.

[41] R v Smith [2000] 4 All ER 289, [2000] Crim LR 1004, HL per Lord Slynn.

[42] Ibid per Lords Hoffmann and Clyde.

[43] Clarkson Understanding Criminal Law (2005) 128.

[44] R v Weller [2004] 1 Cr App R 1.

[45] In AG-for Jersey v Holley [2005] UKPC 23 the Privy Council held that Smith had been wrongly decided. In R v James and Karimi [2006] EWCA Crim 14, [2006] 1 CR App R 29 the Court of Appeal, somewhat controversially, endorsed the decision in Holley over that Smith – which is a House of Lords decision.

[46] R v Rowland [2003] EWCA Crim 3636.

[47] Clarkson Understanding Criminal Law (2005) 129.

[48] Hall Criminal Law and Procedure (1992) 117.

[49] Regina v Welsh 11 Cox Crim. Cas 336 (1869) 338.

[50]  Dressler Understanding Criminal Law 2nd ed (1997) 491.

[51] Low Criminal Law Revised 1st ed (1990) 342.

[52] Ibid 491.

[53] Maher v. People 10 Mich. 212 (1862); Addington v. United States 165 U.S. 184 (1897) jury instruction apparently approved; Fields v. State 52 Ala. 348 (1875); American Law Institute Model Penal Code (1962); Bloy Criminal Law: Lecture Notes 2nd ed (1996); Skelton Contemporary Criminal Law (1998); Hall Criminal Law and Procedure (1992).

[54] R v Camplin [1978] 2 All ER 168; R v Morhall [1995] 3 All ER 659; Luc v The Queen [1996] 2 All ER 1033; R v Dryden [1995] 4 All ER 987..

[55] S v Mokonto 1971 (2) SA 319 (A).

[56] ‘Provocation’ in England and the USAon page 157ff.

[57] S v Mokonto 1971 (2) SA 319 (A); Confirmed in S v Bailey 1982 (3) SA 772 (A) 796.

[58] S v Chretien 1981 (1) SA 1097 (A).

[59] S v Van Vuuren 1983 (SA) SA 12 (A).

[60] Emphasis added; ibid 17.

[61] S v Wiid 1990 (1) SACR 561 (A).

[62] S v Eadie 2002 (1) SACR 663 (SCA).

[63] Burchell Principles of Criminal Law 5th ed (2016) 328.

[64] Snyman Criminal Law 6th ed (2014) 160; Louw 'S v Eadie: The end of the road for the defence of provocation?' (2003) 16 SACJ 204.

[65] Snyman Criminal Law 6th ed (2014) 161ff; Burchell Principles of Criminal Law 5th ed (2016) 332; See, in respect of the trial court decision, Louw 'S v Eadie: Road Rage, Incapacity and Legal Confusion' (2001) 14 SACJ.

[66] S v Eadie 2002 (1) SACR 663 (SCA) para 70.

[67] Snyman Criminal Law 6th ed (2014) 161ff; Burchell 'A provocative response to subjectivity in criminal law' (2003) Acta Juridica; C. R. Snyman 'Criminal Justice in a New Society'ibid; Burchell Principles of Criminal Law 5th ed (2016) 329.

[68] Louw 'S v Eadie: The end of the road for the defence of provocation?' (2003) 16 SACJ 202ff.

[69] Snyman Criminal Law 6th ed (2014) 163.

[70] S v Eadie 2002 (1) SACR 663 (SCA) para 57. Pantazis and Friedman note that Navsa adopts the view that there is no distinction between capacity for self-control and voluntariness, and yet Navsa argues that capacity for self-control should not be jettisoned. However, they state: ‘The reasoning for the continued usefulness of the second part of the capacity enquiry is not clearly expressed.’ (Angelo Pantazis & Adrian Friedman 'Criminal Law' In Annual Survery of South African Law (2002) 818). Louw asks rhetorically: ‘Why ask the same question twice?’(Louw 'S v Eadie: The end of the road for the defence of provocation?' (2003) 16 SACJ 204).

[71] S v Eadie 2002 (1) SACR 663 (SCA) para 60.

[72] Ibid.

[73] See Error! Reference source not found.on page 174ff.

[74] S v Eadie 2002 (1) SACR 663 (SCA) 61.

[75] Snyman Criminal Law 6th ed (2014); Burchell 'A provocative response to subjectivity in criminal law' (2003) Acta Juridica; C. R. Snyman 'Criminal Justice in a New Society'ibid.

[76] Louw 'S v Eadie: The end of the road for the defence of provocation?' (2003) 16 SACJ 202.

[77] S v Eadie 2002 (1) SACR 663 (SCA) para 64.

[78] Louw 'S v Eadie: The end of the road for the defence of provocation?' (2003) 16 SACJ 202.

[79] Ibid 203.

[80] Louw goes further to argue that Navsa JA clearly saw this as an introduction of an objective test since he realised that he was inviting criticism – by what Louw apparently mistakenly attributes to Navsa: ‘Critics may describe this as policy yielding to principle (sic)’ (ibid). Since principle was that the test was hitherto entirely subjective, this statement cannot support the argument made by Louw. If anything, this statement means that the subjective approach shall prevail. What Navsa did say may, at first, appear to support Louw’s submission. However, in its full context,it seems little more than a practical guide: ‘Critics may describe this as principle yielding to policy. In my view it is an acceptable method for testing the veracity of an accused's evidence about his state of mind and as a necessary brake to prevent unwarranted extensions of the defence.’ (S v Eadie 2002 (1) SACR 663 (SCA) para 64).

[81] Burchell 'A provocative response to subjectivity in criminal law' (2003) Acta Juridica 38.

[82] Ibid 43.

[83] Pantazis & Friedman 'Criminal Law' In Annual Survery of South African Law (2002) 818.

[84] Snyman 'Criminal Justice in a New Society' (2003) Acta Juridica; J Burchell 'A provocative response to subjectivity in criminal law'ibid 39ff & 43 following Tadros; Tadros 'The Characters of Excuse' (2001) 21 Oxford Journal of Legal Studies; Snyman Criminal Law 6th ed (2014) 150; Sivakalay Pather 'Provocation: Acquittals provoke a rethink' (2002) 15 SACJ; Burchell Principles of Criminal Law 5th ed (2016) 331.

[85] See Error! Reference source not found.Error! Bookmark not defined.ff.

The model of responsibility proposed will certainly introduce a normative component but on a different basis to other suggestions.

[86] This seems tautologous and necessarily true, until one notes that there are those who argue that incapacity should sometimes not be recognised even where the accused had no capacity (Louw 'S v Eadie: Road Rage, Incapacity and Legal Confusion' (2001) 14 SACJ 216; Snyman Criminal Law 6th ed (2014) 161).

[87] Above.

[88] 2017 (1) SACR 30 (KZD).

[89] Without meaning to imply that he had done so voluntarily.

[90] Navsa JA for a unanimous court, at paragraph 70.

 

[91] Rex v Kennedy 1951 (4) SA 431 (A); discussed in Rumpff Report of the Commission of Inquiry into the Responsibility of Mentally Deranged Persons and Related Matters (1967) para 4.40ff.

[92] S v Arnold 1985 (3) SA 256 (C).

[93] S v Laubscher 1988 (1) SA 163 (A).

[94] Louw 'S v Eadie: Road Rage, Incapacity and Legal Confusion' (2001) 14 SACJ 206-7.

[95] Merryll Vorster Personal Communication 13 June 2011; Merryll Vorster 'An analysis of the amnesias with specific reference to "non-pathological sane automatism" ' University of the Witwatersrand 2002).

[96] Rabey v. The Queen 1980 54 CCC (2d) 1 (SCC).

[97] Ibid 7.

[98] Above.

[99] R v Quick [1973] QB 910, [1973] 3 All ER 347.

[100] S v Mahlinza 1967 (1) SA 408 (A) 417; S v Campher 1987 (1) SA 940 (A) 965; S v Laubscher 1988 (1) SA 163 (A) 167; R v Holliday 1924 AD 250. In respect of the English law, see R v Sullivan [1984] AC 156, [1983] 2 All ER 673 172.

[101] Snyman states: ‘...Freedom of will must, for the purposes of criminal liability, be construed as man’s ability to rise above the forces of blind causal determinism; that is his ability to control the influence which his impulses and passions and his environment have on him. In this way he is capable of meaningful self-realisation: of directing and steering the course of his life in accordance with norms and values - something which an animal is incapable of doing since it is trapped by the forces of instinct and habit. For the purposes of criminal law in general, and of determining culpability in particular, one should merely be able to say that, in the particular circumstances and in the light of our knowledge and experience of human conduct, X could have behaved differently; that, had he used his mental powers to the full, he could have complied with the provisions of the law. The normal sane person who is no longer a child may therefore be held responsible for his deeds and be blamed for his misdeeds. This is also the reason why young children and mentally ill people are not punished when they perform unlawful acts.’ (Snyman Criminal Law 6th ed (2014) 147).

‘Before a person can be said to have acted with culpability, he must have had criminal capacity [footnote omitted] an expression often abbreviated simply to “capacity”. A person is endowed with capacity if he has the mental abilities required by the law to be held responsible and liable for his unlawful conduct. It stands to reason that people such as the mentally ill (the “insane”) and very young children cannot be held criminally liable for their unlawful conduct, since they lack the mental abilities which normal adult people have.’ (emphasis added, CR Snyman Criminal Law 6th ed (2014) page 155).

The Rumpff Commission report notes: ‘Society—and the jurist—proceed on the assumption that a “normal” person is criminally responsible. Thus Gardiner and Lansdown state ... “Where through disease or defect of intellect a person has been deprived of the power of bringing to bear upon his conduct the functions of a normal rational mind, there can be no criminal responsibility.”’ (emphasis added; Rumpff Report of the Commission of Inquiry into the Responsibility of Mentally Deranged Persons and Related Matters (1967) par 2.5).

‘Through insight, reasoning and abstract thinking, man is capable of setting himself a goal which he can pursue voluntarily and deliberately. Such a goal may well constitute a far stronger motivating force in his behaviour than any physiological or social drive. Emotions can. of course, influence a person’s goals and motivation, but intense emotions are subject to volitional control and are not necessarily blind impulses.’ (ibid para 9.25).

‘Two psychological factors render a person responsible for his voluntary acts: firstly, the free choice, decision and voluntary action of which he is capable, and secondly, his capacity to distinguish between right and wrong, good and evil, (insight) before committing the act.’ (original emphasis; ibid para 9.30).

[102] Discussed above.