Chapter 17

Introduction

Ignorance or mistake may operate to exclude liability in South African criminal law. The concept of ignorance may be distinguished from that of mistake on the basis that ignorance implies a lack of knowledge whereas mistake would seem to refer to an erroneous decision based on either erroneous information or a lack of information – such as in the case of ignorance. In South African criminal law it is the mistake – erroneous decision – which is of interest and not the reason for the erroneous decision. For that reason this chapter will primarily concern itself with mistakes with reference, on occasion, to ignorance where relevant.

General Principles

The principles of mistake are applicable to both mistakes of fact, and mistakes of law.[1] The principles are as follows:

1.   Where the form of fault required for a conviction of the crime in question is intention, a (genuine) mistake as to a material requirement of the unlawful conduct requirements, or to the abstract prohibition,[2] will exclude liability;

2.   Where the form of fault required for a conviction of the crime in question is negligence, a (genuine and) reasonable mistake as to a material requirement of the unlawful conduct requirements, or to the abstract prohibition, will exclude liability;

3.   Where no fault is required for a conviction of the crime in question, a mistake, however reasonable, and however extensive, will not exclude liability.

Several preliminary points require discussion. They will be identified here and discussed below.

For a mistake to be operative – that is, to have an effect – it must, in the context of a mistake of fact, relate to a material requirement of the wrongful conduct. Where the form of fault required is intention a tradition has developed which suggests that the mistake must be genuine. However, this reference should not be treated as an additional requirement, but only as a convention adopted to distinguish between an operative mistake where the fault required is intention as opposed to negligence.

Where no fault is required, a mistake cannot assist the accused.

The Effect of a Mistake

It is important to understand the effect of a mistake.  It is a well recognised principle that the fault requirement of a crime  must extend to all the material  requirements of that crime.[3]

mistakes operate to break the link that must exist between the fault requirement and the other requirements.

A mistake does not, of course, change the objective reality. A mistake for instance, that one is killing an animal and not a human being does not, of course, turn the human being into an animal. The effect of the mistake is instead to break the link that must exist for liability to be incurred, between the fault requirement and the wrongful conduct requirements and ultimately the abstract prohibition[4] itself. Once that link is broken the fault requirement cannot extend as it must to all the other requirements and it is then the fault requirement which is not satisfied. Therefore, to use the example of murder, if an accused believed that he or she was killing an animal instead of a human being, his or her intention would not extend to the killing of another human being and therefore the requirement of intention would not be satisfied.

If a crime charged requires neither intention nor negligence, then a mistake on the part of the accused can have no effect. This is because, if no fault is required, no fault can be excluded. The effect ultimately is that a mistake in the context of a no fault (strict liability) offence is irrelevant.

Material mistake

In the context of a mistake of fact,[5] and depending on the form of fault required, a mistake can only be operative if it relates to a material requirement of the wrongful conduct requirements.  So, for the purposes of a charge of murder, material requirements include that another human being is killed and not merely injured, that it is another human being who is being killed and not for, instance an animal. Therefore, if an accused person is mistaken in that he or she thinks that he or she is only going to injure another human being, or perhaps, neither kill nor injure another human being, this would be an operative mistake which would exclude intention and therefore liability for murder.

On the other hand, if an accused were mistaken as to, perhaps the colour of the clothing being worn by the victim, this would be an immaterial mistake of fact and be inoperative. It is worth noting at this point, that a mistake as to the identity of the victim[6] is immaterial and in operative in our law.[7]

If the fault requirement of the particular crime charged requires only negligence however, then the accused will need to show that the mistake which he or she made was a reasonable one – a mistake which a reasonable person in the circumstances of the accused, might have made.

A clear and classic example of a material mistake of fact occurred in the case of Mbombela.[8] In Mbombela the accused attacked and killed what he thought was a “tokelosh”  (an evil spirit which – reportedly - sometimes manifests as a small human being). It transpired that it was instead his nine-year-old niece. He was charged with murder and convicted in the trial court.   On appeal the then Appellate Division (now the supreme Court of Appeal) accepted  that  the accused intended not to kill a human being  and therefore he could not be convicted of murder. However  it then turned to consider whether the mistake that the accused had made  was – for the purposes  of  excluding  negligence  – a reasonable mistake.  As discussed in the chapter on negligence, the court took the view that the accused’s mistake was not reasonable in the circumstances. It therefore convicted him of culpable homicide. Although this case may deservedly be criticised for its view on the standard of the reasonable person,[9] its application of the principles relating to mistake cannot be faulted.

“Genuine” Mistake

A convention has arisen in terms of which when discussing whether a mistake excludes intention, it is necessary to establish whether the mistake was genuine. The problem with this convention is that it suggests that one may make a mistake in a non-genuine way. This would require that people are somehow able to pretend to be mistaken. The problem is – of course – that if one is only pretending to be mistaken, then one is simply not mistaken. At worse then this convention can lead to a spurious enquiry into whether a person was mistaken and yet not mistaken but at best, the qualification is redundant.

It has probably survived because it assists in distinguishing, for some, between a mistake which may operate to exclude intention as opposed to a mistake which may operate to exclude negligence. It is conventionally said that, in order to exclude negligence, not only must a mistake be genuine, but it must also be reasonable. Understood properly however, this only means that in order to exclude negligence, not only must the accused have been mistaken, but that mistake must be reasonable. It would seem that this qualification should be avoided because it is unnecessary, because it adds yet another distraction from the real issues, and most certainly  implies an indefensible conception of the human mind.

Error in objecto and aberratio ictus

There is a fundamental difference between an error in objecto and an aberratio ictus. In the case of error in objecto, the object at which the attack is directed is the object upon which it falls. The mistake relates to the nature or some other attribute of the object – material or immaterial. In cases of aberratio ictus, the object at which the attack is directed is missed and in some cases the attack falls upon some other object. The question that arises in these cases (of aberratio ictus) is whether to simply transfer any fault that may have been directed at the original object onto the object actually struck, or whether to insist that fault must extend to the actual object struck in the same way as principles would otherwise dictate.

Error in objecto

An error in objecto occurs, as discussed above, where one strikes one’s intended target, but one is mistaken in some way, either as to a material or immaterial attribute, relating to the object against which one directs ones attack.[10]

So, for instance if a person (X) had taken aim with a gun at what he or she thought was a rabid dog and had fired with the intention of killing the dog, whereas it transpires that the dog was really a small child, X cannot be convicted of murder because he or she did not intend to kill a human being. Whether he or she can be convicted of culpable homicide will depend on how reasonable a mistake it was to think that the small child was a rabid dog. This is the easy case. The more difficult case is where X aims with a gun at another human being, who he mistakenly thinks is Y. He fires his gun and kills that particular human being. However, it transpires that the particular human being that was killed is Z and not Y. The question here is whether it ought to matter that X killed Z and not Y. The key to answering this question is to understand that the mistake that was made related only to the name of the human being who was killed. The name of the human being as an immaterial attribute.[11] The human being – the human body – that X intended to kill is the particular human body that X did kill. The name of the human being killed is and must be in the same category as the colour of that human being’s clothing – an immaterial and irrelevant attribute.

Aberratio Ictus

In the case of aberratio ictus one does not strike the target against which one directs ones attack – and in this context our law then enquires whether one's fault extends to the actual object or victim upon whom one’s strike falls.

So, in cases where, for instance, X intended to shoot a dog, but misses the dog an strikes a human being, there is little controversy – there can be no conviction for murder or attempted murder. There was never any intention to kill any human being. In the converse though, where X intended to kill a human being, but misses that human being an strikes and kills a dog, there is a failed attempt to kill a human being and therefore attempted murder. These scenarios are perhaps the easier ones to solve. The more difficult scenario arises where P, intending to shoot and kill Q, fires his gun at Q, but misses Q and strikes and kills R. The question that arises is whether P can be convicted for the murder of R.

In these cases there can be no question that a conviction of attempted murder is appropriate in respect of the original victim - the accused attempted to kill another human being and failed. This is a classic attempt. The more interesting and difficult question is whether the accused can be convicted also of the murder of the actual victim – arising in particular from the intention to kill the original victim.

The law that used to be applied in these cases is known as the transferred intent approach. There was little question under this approach that the intention that was directed at the original victim should simply be transferred and treated as if it was directed at the actual victim.[12]

It seems however that our law has abandoned this approach and has moved to what has come to be known as the concrete intent approach.

On this approach, our law has come to insist on the application of general principles. An accused can only be convicted of the murder of the actual victim if the accused had intention which extended to the actual victim.[13] This intention may take any form – including dolus eventualis. Therefore the question becomes whether, in shooting at the original victim, the accused foresaw the (real) risk of striking and killing the actual victim, and having reconciled to this risk, proceeded.

The move began in 1970, with the pronouncement of Holmes JA in his minority judgment in Mtshiza.[14] This case concerned an appeal against sentence only and was not against a conviction. The other two judges in the case adopted a different approach, though reaching the same conclusion.

The facts of the case are that the appellant was engaged in a drunken brawl. He had drawn a knife and attacked a man who had provoked him.  Despite aiming his blow at the provocateur, the knife came to rest in the chest of his own friend who had stepped forward to intervene.  The friend died and the appellant was convicted of culpable homicide.  The appellant appealed against only the sentence imposed. Holmes JA said the following:

“the judgments of the courts in the cases of Kuzwayo and Koza were decided before the Appellate Division rejected the versari doctrine in the Bernadus case (1965 AD) and could no longer be supported on the basis that they were premised on the versari doctrine which was now rejected.”

Ultimately the appeal against the sentence was upheld.

This judgment of Holmes found favour into subsequent provincial Division cases: Raisa 1979 (4) SA 541 (O) and Tissen 1979 (4) SA 293 (T).

In S v Tissen 1979 (4) SA 293 (T) the accused had fired several shots at one person in a crowded street.  A bullet had ricocheted off the street and struck another person. The court held that the accused could not be convicted of an assault on the person struck by the ricocheting bullet except where he had intention in respect of that particular victim.  On the facts, particularly that the accused shot at his desired victim in a crowded street, the accused was found guilty of assault on the basis that he harboured dolus eventualis of the general variety in respect of the actual victim.

In the case of S v Raisa 1979 (4) SA 541 (O) the accused had attempted to stab a woman while she was holding her child. The woman protected herself by holding up the child in front of her and the accused stabbed the child. He had been convicted of assault with intent to do grievous bodily harm in a Magistrate’s court.

On appeal, the Court held that the accused could only be found guilty of assault on the child where there was evidence that he entertained foresight in respect of injuring the child. The court was not satisfied that the accused had intention to injure the child and it set-aside the conviction in respect of the child and remitted the matter back to the magistrate.

The case of S v Mavhungu 1981 (1) SA 57 (AD) it is the last word on the topic in South African law and appears to be appellate division (now the supreme Court of Appeal) authority for the adoption of the concrete intent approach. However, on closer analysis, it would seem that this judgement can at best be regarded as obiter because the court, although adopting the concrete intent approach to the problem before it, conceded that the problem before it was not one of aberratio ictus.

The facts of this case are briefly as follows. The appellant, X, and three others (L, M, and N), conspired in a common purpose to kill Y (who was N’s mother in law). Their purpose was ultimately to use Y’s body parts for muti (a form of medicine). N reported to the others that Y was due to be at N’s home that evening and that they could execute their plan then and there. X was due to attend at N’s home to execute the plan that evening but was waylaid. Ultimately when he arrived at N’s home to do the job, he encountered N, leaving her home, proclaiming to have done the deed. It transpired however, that N had not killed Y, but some other person, Z.

The accused (X) had been convicted of murder of the deceased and had been sentenced to death.  In an appeal, the accused submitted that the only appropriate verdict was not murder but accessory after the fact in respect of the murder of the deceased.

The court itself took the view that these facts did not present a scenario of aberatio ictus - but, as mentioned, nevertheless dealt with it as if it were such a problem. It declared its support for the view of Holmes JA in Mtshiza. The court held that the accused could only be found guilty of murder if the prosecution could establish that he had entertained dolus in respect of the death of the actual victim.  On reviewing the evidence the court concluded that the accused's dolus extended only to the mother-in-law. In the result, the Appellate Division set-aside the verdict of murder and the attendant death sentence and convicted the accused of accessory after the fact to murder.

It seems therefor that the trend is strongly against the transferred intent approach in favour of a concrete intent approach. There can be no question that the concrete intention approach is in line with general principles and ought to prevail.

Versari or bad luck

It is perhaps worth considering whether the problem with the transferred intent approach is that it is versarian or there is some other basis on which it is objectionable. One other possible bases on which the transferred intent approach may be objectionable is if it seeks to impose liability simply on the basis of fortuity: luck or in particular bad luck. There can be no question in our law that one cannot attract criminal liability simply because of fortuity. Imagine a scenario in which a person is driving his/her car as the reasonable person would and a pedestrian rushes out in front of the car, and that despite taking reasonable measures to avert the pedestrian, the person strikes and kills the pedestrian. This is the clearest case of a pure accident where no fault attaches to the driver and the death is regarded as regrettable but fortuitous. I will argue that the true basis upon which liability cannot be imposed in cases of aberratio ictus, is because to do so would be to impose liability based on fortuity.

To return to the example: P, intending to shoot and kill Q, fires his gun at Q, but misses Q and strikes and kills R - the question that arises is whether P can be convicted of the murder of R. Notice, at one level, it remains true to say that P intentionally and unlawfully killed another human being. The only difference is that P killed R instead of Q. There appears, on this level, little to distinguish this scenario and that of an error in objecto where the identity of the victim is irrelevant. However, it is crucial to notice that there is a fundamental difference: the particular human being – human body – at which the blow was directed, is not the human body which was killed. This might seem insignificant at first until one observes that there can be little to distinguish this scenario where the shot misses the original victim and, fortuitously, strikes a tree behind the original victim or falls ultimately to the ground - from where the shot misses and fortuitously strikes another human being. The crucial point is that if it is in truth only fortuity that determines whether another human being is struck and killed or the bullet falls harmlessly to the ground or strikes a tree, then to impose liability for murder based on this fortuity is to punish for murder for bad luck.

If this is the true basis on which the transferred intent approach is objectionable, as I suggest it is, it not only brings clarity to why this approach is objectionable but also gives clarity going forward, to whether any form of liability in cases of aberratio ictus ought to be imposed. Perhaps its true value is in its ability to explain the proper response to situations where the accused intended to kill a person and did kill a person in circumstances of error in objecto as opposed to aberratio ictus.

It avoids the difficulty of having to account for the fact that in scenarios of aberratio ictus, the “identity” of the victim[15] is in some way relevant, whereas in cases of error in objecto, it is not.

As explained in the context of error in objecto,[16] the law attaches liability on the basis that the name of the individual is an immaterial attribute. In the context of aberratio ictus, to transfer intent to kill from an intended original victim to an actual victim in respect of whom there was no such intention to kill would be versarian. However, it would at the same time impose liability for murder based solely on fortuity - that the blow which missed the original intended victim happened, by chance, to strike another human being.

If we applied the same objection – to the imposition of liability based on fortuity – to scenarios of error in objecto, we would have to ask whether it is only by fortuity that the blow came to strike a human being. The answer to this is an unqualified no. The accused intended to kill a human being and killed a human being. The name or identity, however conceived, of the human being killed is irrelevant.

As indicated above, when understood as a problem of fortuity, the only question - in scenarios of aberratio ictus - is whether it is only by fortuity that the actual victim was killed. If, it was not by fortuity alone, and that some form of fault attached to the actual victim then the natural consequences follow.

Mistake of law

Until 1977, ignorance or mistake of law was no excuse: ignorantia iuris neminem excusat. In that year the case of S v De Blom[17] came before our Appellate Division (now the Supreme Court of Appeal) which changed the law in this respect completely. The facts of this case are briefly that the appellant had been convicted of contravening exchange control regulations.  She had been convicted of contravening regulation (3)(1)(a) (the “money regulation”) in that she removed $40,000 in banknotes from the republic without the requisite permission from the Treasury. She had hidden the banknotes in her luggage and her defence on this count was that she did not know that permission was required.

Furthermore, she was convicted of contravening regulation (10)(1)(b) (the “jewelry regulation”) in that she removed jewelry in excess of the value of R600.00 without the requisite permission from the Treasury.  The jewelry removed was worth approximately R14,000.00. She had worn a lot of the jewelry on her person and carried the rest in a bag.  Again, her defence was that she was unaware that consent was required to remove her jewelry from the Republic. Rumpff CJ, for a unanimous court (Jansen JA, Rabie JA, Muller JA, Joubert AJA concurring) stated:

"At this stage of our legal development it must be accepted that the cliche that "every person is presumed to know the law" has no ground for its existence and that the view that "ignorance of the law is no excuse" is not legally applicable in the light of the present-day concept of mens rea in our law."

...

"If the accused wishes to rely on a defence that she did not know that her act was unlawful, her defence can succeed if it can be inferred from the evidence as a whole that there is a reasonable possibility that she did not know that her act was unlawful; and further, when culpa only, and not dolus, is required as mens rea, that there is a reasonable possibility that juridically she could not be blamed, ie that, having regard to all the circumstances, it is reasonably possible that she acted with the necessary circumspection in order to inform herself of what was required of her in connection with the question with whether or not permission was required to take money out. Should there be, on the evidence as a whole, ie including the evidence that the act was committed, a reasonable doubt whether the accused did in fact have mens rea, in the sense described above, the State would not have proved its case beyond a reasonable doubt."[18]

Thus, to paraphrase the court: if dolus is required as the form of fault for an offence, an accused cannot be convicted if a reasonable possibility exists that he or she did not know that his or her conduct was criminal.  Further, where the form of fault required is negligence, an accused cannot be convicted where there exists a reasonable possibility that the accused made a reasonable mistake.

The court held that fault was required for a conviction under these various regulations although it did not declare what form of fault was required.  The court proceeded on the basis that either intention or negligence was required and that deciding what form of fault was required was unnecessary.

On the facts of this particular case, in respect of the conviction for contravening the money regulation, the court found that even if the regulation required dolus, the accused had been properly convicted since “she knew that she needed permission to take money out of the country and that such permission had not been obtained” - on the basis that, amongst other things, she had hidden the money.

In respect of her conviction for contravening the jewelry regulation, the court found that on the facts that she was a person who possessed a lot of jewelry and wore more jewelry then the average woman. It noted also that she had, on previous occasions, taken jewelry out of the country and returned with it and that she intended returning with this jewelry.[19] It concluded therefore that it was reasonably possibly true that she had not been aware that permission was required (thus negating dolus). Also, that even if negligence was sufficient for this crime, her mistake had not been shown to be unreasonable in the circumstances.

With this, the defence of mistake of law was recognised in our law and continues to be recognised. Ignorance of the law is now indeed a valid defence.

Extent of Mistake

The accused is not required to know the specific provisions of the law he is alleged to have contravened in order that a conviction follow.

Where the fault required is intention, it is sufficient if the accused foresaw a (real) possibility that his/her conduct may be prohibited by law and (having reconciled him/herself) proceeds; it is not required that his/her foresight extend to the particular legal provisions.

Where the fault required is negligence, it will be present if the accused is unreasonably in error of the law.

Negligence

The De Blom judgment declared that a mistake of law, where dolus is the form of fault required for an offence, would negative the fault requirement. It also established that a mistake of law, where the requisite fault is culpa, would negative the existence of fault where the mistake was reasonable.  The court held that the prosecution had failed to establish that the appellant's ignorance or mistake of law was unreasonable.

The effect of this mistake on a charge in respect of which negligence is sufficient is not straightforward. The mistake or ignorance must be reasonable. The problem arises as to what is a 'reasonable' mistake, or 'reasonable' ignorance. It must, of course, be a mistake a reasonable person, in the circumstances of the accused, would make.

Ordinarily, the reasonable person has no special knowledge or skill,[20] other than that which is demanded by the task in which the accused engages.[21]

However, the court in De Blom qualified the position of an accused seeking to rely on a reasonable mistake of law. It adopted a passage from an article by Botha, discussing the implications for our law of the decision in the case of Tsochlas,[22] as follows:

In our case law there are at present at least two guidelines for determining culpa in respect of the lawfulness of the wrongdoer's conduct. In Wandrag’s case [1970 (3) SA 151 (0)] the Court held that an employer in the building industry could reasonably be expected to keep abreast of the law relating to the employment of employees in the building industry. If he neglects to do this, his consequent ignorance of the law may give rise to the blame of carelessness. The same will presumably apply to a person in the modern state, where numerous facets of a legal subject’s conduct are regulated by legal provisions, who is occupied in a specific field. It can surely reasonably be expected of a garage owner to be acquainted with legislation regulating his sphere of operations and it can surely be expected of an angler to ascertain what the regulations affecting angling are. A person who wants to conclude a transaction in respect of diamonds and who knows that the diamond industry is strictly controlled by legislation, can justly be blamed if he, like Tsochlas [S v Thochlas 1974 ( l) SA 565 (O) sic], fails to obtain legal advice and consequently acts unlawfully.[23]

This appears to have been applied in the case of S v Du Toit[24] in which the accused (a motorist) had been convicted in the magistrates court of contravening certain regulations restricting the transporting of petrol other than in a petrol tank.  At that particular time there was a shortage of petrol in South Africa and the regulations had been widely publicised. The accused had raised the defence of mistake of law - that he did not know that he was acting illegally. The Court dismissed the appeal. It confirmed that the regulation required fault in the form of negligence only and held that the accused's mistake of law had been unreasonable and therefore negligent. The court was of the opinion that the appellant, as a motorist, ought to have familiarised himself with the provisions.

Thus a person may be expected to know the law relating to his/her specific field of occupation or sphere of operation. Yet, as Burchell notes, we are not left with any great deal of clarity regarding what will be considered one's sphere of operation or activity, and then, what will fall within that specific field of occupation or sphere of operation.[25]

Obtaining legal opinion

Where a crime may be committed negligently, it is not a defence to argue that one's conduct was based on legal advice which had indicated that the conduct in question was not prohibited in law as a crime.

In the case of S v Waglines (Pty) Ltd and Another[26] the appellant had been convicted of contravening the road transportation act on the basis that they were not in possession of the requisite permit to transport certain packing material.  They had obtained and relied upon advice of a transport consultant and of an experienced attorney.

The Court held – in line with the admonition from De Blom - that, where an offence is committed by negligence a person has a duty to acquaint himself with the true legal position, particularly in respect of the trade in which he is engaged.

In an extraordinary finding, the court held that the reasonable person of average intelligence and sophistication is aware that lawyers in judges differ on their views in respect of the same points.  Such a person could not take for granted the correctness of all legal advice he receives.

The court held that the appellant had failed to investigate the relevant laws and that the advice that they had received did not discharge their duty to acquaint themselves with the true legal position. They had failed, the court held, on the basis that the reasoning of the advice received was patently bazaar and was so obviously erroneous that it should not have been trusted.

Similarly in the cases of S v Longdistance (Natal) (Pty) Ltd[27] and S v Claasens[28] the courts again emphasised that the public is required to second-guess lawyers who are ostensibly qualified to give legal advice.

In Longdistance the court took the view that one ought to evaluate the advice one receives against one’s common sense. In Classens the Court required that one evaluate the advice based on whether the lawyer is clearly out of his/her depth.

This implies, it seems, that the law is rational in that an application of commonsense would detect erroneous advice at odds with what the law actually is.  This appears to be a most dubious assertion especially in the light of the concession made in the case of Waglines that not even lawyers or judges agree about what the law is.

Mistake as to Unlawfulness

The type of mistake under consideration here relates to the unlawfulness requirement contained within the definition of a criminal prohibition. For instance, in the context of the crime of murder, a relevant mistake would put the link between the intention requirement and the unlawfulness requirement in question in the definition of murder: intentional unlawful killing of another human being.

In order to properly understand this issue one must draw a distinction between the unlawfulness requirement in the sense described immediately above – as a requirement with in the criminal prohibition of murder – and the criminal prohibition itself. The criminal prohibition, also known as the abstract proscription, refers to the fact that it is a criminal offence to commit murder – to “intentionally and unlawfully kill another human being”. If one is mistaken as to whether it is a criminal offence to intentionally and unlawfully kill another human being one makes a mistake of law. One may also however be mistaken as to the internal requirement of the abstract prohibition – of unlawfulness - and this mistake may be one of fact or of law.[29]

It is helpful to recall what it is that the unlawfulness requirement represents. Conduct is judged unlawful according to the court’s conception of the legal convictions of the community, as informed by the Bill of Rights in the Constitution.[30] It is under this requirement that conduct, which may ordinarily be prohibited as unlawful, may be permitted as justified in the circumstances. Several grounds of justification have been recognised, including private defence (which includes self-defence),[31] necessity (better known as duress),[32] and consent.[33]

Furthermore, South African criminal law punishes omissions only where the accused has failed to act in the face of a legal duty to act. Whether a legal duty to act exists in a particular circumstance is also a question of unlawfulness to be determined, again, by the court’s conception of the legal convictions of the community, as informed by the Bill of Rights in the Constitution.[34]

Therefore, mistake  a o unlawfulness would be a mistake as to whether one’s conduct was justified or whether, in the context of an omission, one was under a legal duty to act.

Our law recognises that one’s conduct is justified and therefore lawful in private defence when, in response to an unlawful imminent[35] or commenced attack upon a legally protected interest, one resorts to the use of necessary and reasonable force against the attacker.[36] So, if X resorts to force against Y in the mistaken belief that Y was about to attack X, then X would have the defence of mistake as to unlawfulness available to him or her. If the accused can show that s/he was mistaken in thinking s/he was entitled to act in private defence, this mistake will exclude intention.[37] If that mistake is shown to have been reasonable, it will also exclude negligence. This defence is technically known as putative private defence. It is not real private defence because there was – objectively speaking – no real attack and private defence cannot be claimed. However the accused is said to have acted in putative private defence – meaning only perceived private defence. It is in fact misperceived private defence but is understood to convey that the accused’s defence is that he or she was mistaken and so puts his or her fault in issue. In a case such as this, where X’s mistake was that he or she thought that he or she was under attack – whereas he or she was not – this is a mistake of fact. In R v Hele[38] the accused stabbed a person to death in a mistaken belief that this person was armed with a knife and was about to stab him. The court acquitted the accused of both murder and culpable homicide on the basis that it accepted that he was mistaken and that his mistake was reasonable.

In S v Pistorius the accused had shot and killed his girlfriend through the door of the toilet in his house. He claimed that, amongst other things, he had mistakenly believed he was under attack and had acted in putative private defence. He was acquitted of murder in the trial Court.[39] The state appealed on a question of law and the Supreme Court of Appeal rejected the defence in its entirety, as follows:[40]

“The immediate difficulty that I have with the accused’s reliance upon putative private defence is that when he testified, he stated that he had not intended to shoot the person whom he felt was an intruder. This immediately placed himself beyond the ambit of the defence, although as I have said, his evidence is so contradictory that one does just not know his true explanation for firing the weapon. His counsel argued that it had to be inferred that he must have viewed whoever was in the toilet as a danger. But as was pointed out in De Oliviera,[footnote omitted] the defence of putative private defence implies rational but mistaken thought. Even if the accused believed that there was someone else in the toilet, his expressed fear that such a person was a danger to his life was not the product of any rational thought. The person concerned was behind a door and although the accused stated that he had heard a noise which he thought might be caused by the door being opened, it did not open. Thus not only did he not know who was behind the door, he did not know whether that person in fact constituted any threat to him. In these circumstances, although he may have been anxious, it is inconceivable that a rational person could have believed he was entitled to fire at this person with a heavy calibre firearm, without taking even that most elementary precaution of firing a warning shot (which the accused said he elected not to fire as he thought the ricochet might harm him)…”.[41]

In the result, the Supreme Court of Appeal substituted a murder conviction for the culpable homicide conviction.[42]

Note also that it is entirely possible though that an accused could make a mistake as to whether, in law, force is permitted in a particular circumstance, or the extent of force that is permitted, and therefore make a mistake in the context of unlawfulness, but a mistake which is, properly understood, a mistake of law.[43] This distinction may seem utterly unnecessary to draw. However there may be you where the distinction is important such as where a court must decide what – in law – was permitted in the particular circumstances as opposed to what the circumstances were. The distinction is important because only a judge may decide what in law was permitted whereas assessors may not and may only concern themselves with questions of fact and what the circumstances were.[44]

Mistake as to Causal Sequence or Act

Until 1989 our law was clear that a mistake as to the causal sequence by which a prohibited consequence is caused is irrelevant. That is, a mistake relating to how – the manner by which – one’s conduct produces the intended result is not a factor an accused could raise in his or her defence to exclude fault. To understand this problem it is necessary to observe that one may distinguish quite clearly between two different types of mistake both of which at first seem to qualify as mistakes as to causal sequence. The two types of mistake are, on the one hand, a mistake as to causal sequence (MACS), and on the other, a mistake as to causal act (MACA).[45]

Imagine the following two scenarios. In both, X intends to unlawfully kill Y by poisoning. The first is a scenario of a MACS, as follows: X puts a poison pill in Y's food and serves it to Y. X expects and intents that the pill will be swallowed and the contents will be absorbed into Y's body, and that Y will die from poisoning. One may imagine, quite legitimately, that X does not intend or even foresee that death could result in any other way. X does not care how death is actually produced, but does not foresee it being caused in any other way other than by poisoning.

Now, imagine further that Y begins to eat, but the pill becomes lodged in Y's throat and Y chokes to death. Notice, crucially the accused has done that act by which s/he intends to kill. It is only the way in which that act causes death that is not, at least, foreseen. Intuitions seem to direct that this mistake must be irrelevant to the imposition of liability.

Consider, in the alternative, the same scenario, except that, as X is about to present the food (containing the poison pill) to Y, X knocks Y with his (X's) elbow - imagine that this caused Y to fall from his/her chair, to knock his head on the ground, and to die from brain trauma. Imagine too that this was not foreseen as a possibility. Crucially, in both cases X intended to unlawfully kill Y, and in both X does kill Y. However, in the second scenario (death by brain trauma) Y has not yet done that deed by which s/he intends to kill. X has not yet presented the poisoned food to Y to eat. Intuitions relating to this second scenario may direct one to a different conclusion - that this mistake on the part of X should somehow count in his defence at least against a conviction of murder. He may be guilty of an attempt to murder, but there seems to be something that precludes us from concluding that X, in this scenario, murdered Y.

It is submitted[46] that these two scenarios ought to attract different intuitive responses, that these intuitions manifested correctly in our law until the case of Goosen in 1989,[47] and the decision in this case has introduced bad and even dangerous precedent.

Until the case of Goosen (1989 AD) our law[48] was clear that a MACS could not be raised as a defence. In S v Masilela[49] Rumpff JA stated:

“In my opinion in cases like the present where the actor and the no-one else causes the death, mistake on the actor’s part as to precisely how and when the death will come about is not a factor on which he can rely .... [in this situation]  the actor has meant to bring about death and has caused such death.  In [this situation] he has, in his mind, been mistaken about the precise way in which and time when death results.  His mistake  ... regarding the precise way in which and time when, pathologically speaking, death results is, in my opinion, completely irrelevant.”

The facts of S v Goosen 1989 (4) SA 1013 (A) are briefly as follows. The accused, A, together with B, C, and two others (D & E) planned to rob P by cutting his car off at a stop street, and by threatening him with a machine gun, make him hand over his money. In execution of this plan A drove his gang and cut P off as he waited at a stop street in his car. B got out, took up position in front of P’s car, and pointed the machine gun at P. C then got out and went over to P who was sitting in the driver’s seat of his car. C struck P on the jaw causing P’s head to jolt back and P to lose control of his vehicle. P's vehicle began to roll forward threatening to crush B between the two cars. B had to dive out of the way.  However, as B jumped, and this - a crucial piece of evidence - was accepted by the court, he involuntarily[50] pressed the trigger and shot P, killing him.

A, the accused, was convicted of murder on the basis of an application of common purpose and was  sentenced to death.  The matter went on appeal to the Appellate Division (now the Supreme Court of Appeal).

Van Heerden JA (Nestadt JA, and Kumleben JA concurring) began by conceding that our courts until that point had not been prepared to accept the defence of mistake as to causal sequence. He painstakingly goes on to confine each precedent to its particular facts or to otherwise distinguish it from the present case, and then turns to pronounce:

My conclusion is, therefore, that dolus is lacking where an accused's forsight of the causal sequence differs markedly from the actual causal sequence. In other words, in a consequence-crime, intention must be aimed at bringing about the result in materially the same way as it in actual fact occurs. Because in the case of dolus directus the accused desires a result and is indifferent as to how it occurs, it can be expected that a deviation will not readily be regarded as material.

He holds that a sequence “differs markedly” when:

“[It] is a deviation where the actual causal sequence differs from the sequence contemplated to such an extent that it cannot reasonably be said that the accused had envisaged the former."

Finally, he concludes:

“I deal finally with the question whether the appellant's foresight of the causal sequence which could lead to the deceased's death differs materially from the actual events. I am of the view that it does. The appellant had foreseen the possibility that [B] might fire at the deceased intentionally and thereby fatally injure him. What in fact happened was that [B] pulled the carbine's trigger involuntarily. Causing death by means of intentional conduct obviously differs markedly from involuntary conduct ...”

Thus a defence of mistake as to causal sequence was recognised in our law. It is true that the court restricted the defence to instances where intention took the form of dolus eventualis. However, the reasoning for this distinction is not clear.

Van Heerden JA’s reasoning is that this defence should not avail someone who acts with dolus directus because, when someone acts with dolus directus, he or she is indifferent as to the sequence of events. By necessary implication then, Van Heerden JA takes the view that when someone acts with dolus eventualis he or she is not indifferent as to the sequence of events - supposedly then someone who acts with dolus eventualis cares or is somehow concerned with how it is that his or her conduct, for instance, kills the victim. Van Heerden JA gives no reason for thinking that it is only when a person kills with dolus eventualis that he or she cares or is somehow concerned that the victim should die in roughly the way that he or she intends or foresees it. This distinction does not seem to be sustainable.

Up to this point one may already take the view that the judgement is flawed on the basis that it seeks to attribute involuntary conduct which is in truth no conduct at all and so not attributable, and it operates on the flawed distinction that a person acting with dolus eventualis cares how his or her victim dies. These are perhaps the more obvious basis on which to criticise this judgement.

Paizes[51] criticises the judgement to a far deeper level and shows that the confusion runs far deeper. Paizes appears, at first, to be kind in that he argues that van Heerden ultimately arrived at the right conclusion. However the sting in his argument is that van Heerden only arrived at the correct conclusion by committing two fundamental errors which only by coincidence produced the right conclusion. He argues that the fundamental errors have created precedent in our law which are perhaps even dangerous.

Paizes reveals by painstaking analysis that whereas van Heerden believed he was confronted with a mistake as to causal sequence, he was instead in fact confronted with a mistake as to causal act. That this is so may be recognised when one recalls the basis on which one may distinguish a mistake as to causal sequence from a mistake as to causal act. The answer, is produced by asking the question, whether the accused had done that deed by which he or she intended or foresaw he or she may kill. In the context of the facts of Goosen’s case, in which everyone had foreseen the possibility that the victim may be killed by a deliberate shooting, one must ask whether there had yet been a deliberate shooting. The answer to this is an unequivocal no. The deed had not yet been done and therefore the mistake that was made in Goosen’s case was a mistake as to causal act. As Paizes argues, it is appropriate to recognise a defence of mistake as to causal act - and it is for this reason that he concludes that Van Heerden JA’s conclusion is correct.

However, as Paizes points out, having miscategorised the mistake that was made as one as to causal sequence, the learned judge ought not to have recognised the defence, ought to have followed precedent on the matter, and by recognising a defence, has created a dangerous precedent. It is, as Paizes points out, now a valid defence to complain that your victim did not die in the manner in which you intended or foresaw that s/he would.

All that can be said of this case in conclusion, is perhaps only that we are fortunate that no case of mistake as to causal sequence has presented itself before our courts. If and when it does, any decision which follows Goosen’s case will have to be appealed as an error of law.

Intoxication

Intoxication is recognised in South African criminal law as the basis for a defence. This remains the case despite legislation which has attempted to alter the position. However, even though intoxication is recognised as the basis of a defence, the principles of our criminal law are sufficiently robust so that, even if one escapes liability for "conduct" once drunk, one may nevertheless trigger liability for one's conduct before one became drunk or for one's conduct in getting drunk.
Two points should be observed first. By intoxication I am referring to intoxication by any means: alcohol or drugs.
Secondly, I am not dealing here with offences in respect of which being intoxicated is a requirement for the offence, such as, being in control of a motor vehicle while intoxicated. Instead I am dealing with the question of whether liability for other offences, such as assault, murder or culpable homicide can be imposed, where, because of intoxication, a requirement of liability is absent.
Intoxication was recognised as a defence, or rather, accepted as a basis for a defence in 1981 in S v Chretien (AD).[52]

Until the case of Chretien, our law applied what was known as the "specific intent" approach, which allowed for the conviction of a person for a lesser crime even if, because of intoxication, an element or requirement of criminal liability of the lesser crime was absent.

For instance, in 1969 in S v Johnson (AD)[53] the accused was convicted of culpable homicide even though the court accepted that he was so drunk that his conduct was involuntary. The point was that the courts took issue with the reason for the defence raised - that a drunk person should not be less liable to the criminal law than a sober person.

The problem was that this approach was utterly contrary to the principles of criminal law - that if someone is to be convicted of an offence, all the requirements must be met - it should not matter why a requirement is not met.

Chretien

In S v Chretien the accused was at a party at a house where he got very drunk. He left in his car, and had to navigate the road in front of the house which was still crowded with party goers. He drove into the crowd, killing one and injuring five. He was charged with culpable homicide of the one he had killed, and attempted murder of the five he had injured.

As discussed elsewhere, culpable homicide is the negligent unlawful killing of another person. Murder is the intentional unlawful killing of another human being. Attempted murder also requires intention. You must intend to murder, even though, for some reason, you fail.

The trial court convicted the accused in Chretien on the culpable homicide charge. This was not controversial or at odds with the law of the time. What was controversial and at odds with the prevailing law (of specific intent) was the court’s findings on the attempted murder charges.

On the specific intent approach, an accused charged with attempted murder, which requires intention, could be convicted of common assault, even though this offence (common assault) requires intention and even though the accused, because of intoxication, had no intention to assault.

In response to these charges, the accused argued that, because he was intoxicated, he truly believed that the people in the road would move out of the road. This was a claim of a lack of intention to kill or assault. It is crucial to note that the court accepted this - that the accused did expect the people in the road to move and did not have any intention to kill or assault.

The scene was set for a conviction of common assault - following the specific intent approach. However, the trial court found that it could not convict the accused of common assault because it could not convict someone of a crime which required intention when the accused did not harbour the required intention. It acquitted him of the five charges of attempted murder and of common assault. This decision was confirmed by the Appellate Division (now the Supreme Court of Appeal). The Appellate Division agreed that principle must prevail. If a crime requires intention, an accused cannot be convicted of the offence in the absence of intention.

It is crucial to recognise that Chretien did not recognise intoxication as a defence, but only that, if an accused lacks a requirement for criminal liability because of intoxication, this reason (intoxication) will be irrelevant.

This is crucial to recognise because the ordinary principles continue to apply. If one, despite being drunk, does foresee the risk of harm, accepts the risk and proceeds, one has dolus eventualis. The point is that being drunk, in itself, is not a defence.

The decision in Chretien was an endpoint in the development of SA criminal law in accordance with principles rather than considerations of policy and expedience, of arbitrary rules and equally arbitrary exceptions.

It led in turn to further development in the areas of involuntariness and incapacity and is the basis for the recognition in our law of the defence of non-pathological criminal incapacity (also known as temporary insanity).[54]

Criminal Law Amendment Act (1 of 1988)

The Chretien case was not received well by the legislature and in 1988 it intervened - enacting the Criminal Law Amendment Act (1 of 1988) by creating a crime (in s 1(1)) of being not guilty of any offence. More specifically, it created the offence of being not guilty of an offence because of intoxication. It is however crippled by its ill-considered structure and the bad choice of wording. It is so badly worded that it places a criminal onus on the prosecution to prove that, as alluded to above, an accused is not guilty of any offence.[55]

The section provides as follows:

“(1) Any person who consumes or uses any substance which impairs his faculties to appreciate the wrongfulness of his acts or to act in accordance with that appreciation, while knowing that such substance has that effect, and who while such faculties are thus impaired commits any act prohibited by law under any penalty, but is not criminally liable because his faculties were impaired as aforesaid, shall be guilty of an offence and shall be liable on conviction to the penalty, except the death penalty, which may be imposed in respect of the commission of that act.

(2) If in any prosecution for any offence it is found that the accused is not criminally liable for the offence charged on account of the fact that his faculties referred to in subsection (1) were impaired by the consumption or use of any substance, such accused may be found guilty of a contravention of subsection (1), if the evidence proves the commission of such contravention.”

Despite being a response to the Chretien case in which the accused escaped because he lacked intention, the Act targets an accused who escapes liability because of a lack of capacity. In other words, the Act does not even address itself to the problem it was created to solve.

Even worse, it places the prosecution in the invidious position that, while on the main charge of, say, assault, it has to prove, beyond reasonable doubt that the accused had capacity, if the court was not convinced and acquitted the accused, the prosecution had to, under s 1(1) of the Criminal Law Amendment Act, return to court and contradict everything it had argued up to that point regarding capacity. It must argue that the accused lacked capacity beyond all reasonable doubt.[56] Thus it has to go from arguing that the accused had capacity beyond all reasonable doubt, to arguing that the accused actually lacked capacity beyond all reasonable doubt.

Understandably then, while there have been convictions under this Act, there have been few, if any, convictions that have withstood the scrutiny of a review or appeal. It was bound to fail in any event given that it's premise is to impose liability on someone who, on fundamental principles of criminal law, is not guilty of any crime.

Antecedent Liability

This does not mean that one may rely on intoxication without consequence. This is because if all the requirements for liability line up and are present at the time that you start drinking, you may be convicted of committing the offence at that moment in time. This is known, originally as the doctrine of actio libera in causa (to liberate oneself in a cause), and now, as antecedent liability.[57] There is no magic in this although it is often misunderstood. It is often misunderstood to be an exception to the rule that all requirements must be met for liability to be imposed. It is not an exception, instead it is actually an application of the principles that all requirements must all be present - but that whenever they are, you incur criminal liability. Let's assume I decide to get very drunk, park my car on a hill above a busy road that I know will be packed with pedestrians when I leave, I leave the car unlocked because I know that when I return I will be too drunk to unlock the door and I go and get drunk. If, then, on my return, I manage to stumble into the car and release the handbrake, after which I pass out, I cannot escape liability for, at least culpable homicide, even though, at the moment my car knocks into and kills pedestrians, I was in a state of involuntariness. Our law will look backward in time for antecedent liability. Whether there was a moment in time, when I was acting voluntarily, possibly when I returned to the car, or even when I left the car, which is causally linked to the death of the pedestrians and at which time I was negligent - for culpable homicide. Arguably, there are two such moments: when I returned to the car and when I left it. It is even arguable that I may have foreseen the possibility of causing the death of pedestrians and therefore I could be guilty of murder - again, not because of anything I did after I passed out - but because of what I did and thought before that.

 Thus, in theory, intoxication in our law is a valid defence, although subject to the virtually crippled Criminal Law Amendment Act. However, this is no licence to drink and misbehave, because doing so naturally attracts attention to what you thought and did before you became too drunk to be accountable to the criminal law. If you expect that you will misbehave or even if you ought to know that you may, you would make yourself a candidate for antecedent liability.


 

[1] Since S v De Blom 1977 (3) SA 513 (A) in which mistake of law was recognised as a valid defence.

[2] That it is prohibited in law as a crime.

[3] Andrew Paizes ''Mistake as to the Causal Sequence' and 'Mistake as to the Causal Act': Exploring the relation between Mens Rea and the Causal Element of the Actus Reus.' (1993) 110 SALJ 493. R v Mbombela 1933 AD 269.

[4] That it is a crime.

[5] As will be discussed below, a mistake of law must also be material in the sense that there will be certain mistakes – such as to the precise statute and section number under which conduct is made an offence – that will be immaterial. 

[6] In the sense of the name of the particular human body which one intends to kill. If one takes aim at a particular human body a mistake as to the name by which that person goes, is immaterial and inoperative. The name by which a person goes is at most an immaterial attribute..

[7] Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SA 431 (SCA). This will be discussed further below in the context of error in objecto and aberratio ictus.

[8] R v Mbombela 1933 AD 269. For a full discussion of Mbombela see the chapter on Negligence.

[9] Discussed in the chapter on negligence.

[10] R v Mbombela 1933 AD 269 is authority for this proposition.

[11] Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SA 431 (SCA). For an in-depth discussion of the topic in the context of the Pistorius case, see the post on the site jamesgrant.co.za: Unsuccessful Attempts to Justify Judge Masipa’s Errors (Revised & Expanded).

[12] R v Koza 1949 (4) SA 555 (AD); R v Kuzwayo 1949 (3) SA 771 (AD).

[13] Mtshiza 1970 (3) SA 747 AD.

[14] 1970 (3) SA 747 AD.

[15] That it was this person (human body) rather than that person (human body) that was killed.

[16] Where one person – following the example above – say Z, is killed in the mistaken belief that Z is Y.

[17] S v De Blom 1977 (3) SA 513 (A).

[18] S v De Blom 1977 (3) SA 513 (A) 532. Translation by Jonathan Burchell Cases and Materials on Criminal Law 3rd ed (2007) 462.

[19] It is perhaps worth noting that the court here seems to have attributed to the reasonable person the understanding of the accused, that one may travel with a substantial amount of jewellery. This appears to subjectivise the standard of the reasonable person beyond taking account of the immediate external circumstances of the accused. This decision predated S v Ngubane 1985 (3) SA 677 (A) – but what is perhaps worth noting is that Jansen JA (in Ngubane) did not expressly overrule this flourish. Perhaps the argument could be made that, in the context of a mistake of law, the standard of the reasonable person must be subjectivised to take account of the understanding that the accused had developed although, in my view, this is to start on the slippery slope discussed in the chapter on negligence.

[20] S v Southern 1965 (1) SA 860 (N); R v Mbombela 1933 AD 269; S v Ngubane (note 9).

[21] In circumstances in which an unskilled person has engaged in an activity that requires special skill and knowledge, such as medical surgery, the conduct of the accused is compared to that of a reasonable person who possesses the requisite skill (R v Van Schoor 1948 (4) SA 350 (C); S v Van As 1976 (2) SA 921 (A)). Additionally, our law may attribute actual knowledge an accused has, to the reasonable person, for the purposes of comparison (ibid; S v Ngema 1992 (2) SACR 651 (D)).

[22] S v Tsochlas 1974 (1) SA 565 (A).

[23] Emphasis added; DA Botha 'Verbytbare regsonkunde en die Skultsoort Culpa' (1975) 28 THRHR 50-1. Translation by Burchell (note 72) 461-2.

[24] 1981 (2) SA 33 C.

[25] Jonathan Burchell South African Criminal Law & Procedure: General Principles of Criminal Law 4th ed Vol 1 (2011) 444.

[26] 1986 (4) 1135 (N).

[27] 1990 (2) SA  277 (A).

[28] 1992 (2) SACR 434 (T).

[29] James Grant 'The Double Life of Unlawfulness: Fact and Law' (2007) 20 SACJ.

[30] Constitution of the Republic of South Africa, 1996. See Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC).

[31] S v De Oliveira 1993 (2) SACR 59 (A); S v Mokonto 1971 (2) SA 319 (A); Ex parte Minister van Justisie: In re S v Van Wyk 1967 (1) SA 488 (A).

[32] S v Goliath 1972 (3) SA 1 (A).

[33] Clarke v Hurst NO 1992 (4) SA 630 (D); S v Collett 1978 (3) SA 206 (RA); S v Robinson 1968 (1) SA 666 (A).

[34] Minister van Polisie v Ewels 1975 (3) SA 590 (A); Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC).

[35] Subject to the judgment in S v Engelbrecht 2005 (2) SACR 41 (WLD).

[36] R v Zikalala 1953 (2) SA 568 (A) 572; R v K 1956 SA 353 (A) 359; R v Patel 1959 (3) SA 121 (A); S v Jackson 1963 (2) SA 626 (A) 629.

[37] As stated in S v De Oliveira 1993 (2) SACR 59 (A): “…the only issue was whether the State had proved beyond all reasonable doubt that the appellant subjectively had the necessary intent to commit the crimes of which he was convicted, in other words, that he did not entertain an honest belief that he was entitled to act in private defence.” (page 64).

[38] (1947) 1 SA 272 (E); see also S v Ntuli 1975 (1) SA 429 (AD); S v De Oliveira 1993 (2) SACR 59 (A);

[39] S v Pistorius 2014 JDR 2127 (GP).

[40] Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SA 431 (SCA).

[41] Emphasis added; paragraph 53.

[42] A further appeal by the accused to the Constitutional Court was rejected. 

[43] See James Grant 'The Double Life of Unlawfulness: Fact and Law' (2007) 20 SACJ.

[44] Grant ('The Double Life of Unlawfulness: Fact and Law' (2007) 20 SACJ) submits that this distinction was not observed in the case of S v Engelbrecht 2005 (2) SACR 41 (WLD)in that a vital opportunity to develop the law was lost.

[45] I must credit much or even most of the insights expressed here to Andrew Paizes - arising out of his article Andrew Paizes ''Mistake as to the Causal Sequence' and 'Mistake as to the Causal Act': Exploring the relation between Mens Rea and the Causal Element of the Actus Reus.' (1993) 110 SALJ 493. To the extent to which I deviate from his views on the topic, my views are possibly wrong.

[46] Following Paizes.

[47] S v Goosen 1989 (4) SA 1013 (A).

[48] R vLewis 1958 (3) SA 107 (A); S v Msiza 1984(2) PH H116 (A); S v Masilela 1968 (2) SA 558 AD; S v Daniëls 1983 (3) SA 275 (A).

[49] 1968 (2) SA 558 AD.

[50] The actual word used in the judgement here is “onwillekeurig” – which translates into the English: involuntary. However, if this were the finding of the court, there would have been no conduct on the part of B, and so no conduct to attribute to the others in the common purpose. It seems that this is not what the court meant because it did attribute the conduct to the others. However, this error is worth noting because if one does not read over this error, the entire judgment fails – perhaps as it should.  

[51] Andrew Paizes ''Mistake as to the Causal Sequence' and 'Mistake as to the Causal Act': Exploring the relation between Mens Rea and the Causal Element of the Actus Reus.' (1993) 110 SALJ 493.

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

[53] S v Johnson 1969 (1) SA 201 (AD).

[54] S v Wiid 1990 (1) SACR 561 (A); S v Eadie 2002 (1) SACR 663 (SCA).

[55] Andrew Paizes 'Intoxication Through the Looking-Glass' (1988) 105 South African Law Journal 776-88.

[56] S v Lange 1990 (1) SACR 199 W;  S v Mbele 1991 (1) SA 307 (W); S v September 1996 (1) SACR 325 (A).

[57] See the chapter on Antecedent Liability.