As indicated in previous chapters, under the principle actus non facit reum nisi mens sit rea, fault is generally required for criminal liability. No common-law offenses of strict liability exist. However, the exception of strict liability continues to exist in our law in the context of statutory offences. Furthermore, it is often not clear when a statutory offence is created, whether it requires fault and if so, then in what form. In what follows I shall try to set out how our courts approach this problem.
Strict liability is liability where no fault is required. That is, the prosecution does not have to establish that the accused entertained any form of fault secure a conviction. It is also not the case that the prosecution must prove that there was no fault. Fault is simply irrelevant. It is an exception to the principle of no liability without fault. Where, in a statutory offence, it is not clear whether fault is required, our Courts prefer to interpret the statute so as to require fault. Strict liability is also at risk of being struck down as unconstitutional in that it, arguably:
1. Violates the right to a fair trial since it deprives the accused of a defence which would avail him/her in an equitable justice system. In S v Coetzee O’Regan J recognised fault as a fundamental requirement for liability in democratic societies. According to Kentridge J in Coetzee, fault is an element of fundamental justice and is universally recognised as an essential requirement for liability, though it is not indispensable in that strict liability may sometimes be legitimate. Kentridge AJ in S v Zuma stated that strict liability violates the right to a trial in accordance with “notions of basic fairness and justice”.
2. Violates the presumption of innocence, particularly in that s/he may be convicted where a reasonable doubt exists in respect of their guilty mind.
3. Violates the right to equality in that different categories of offenders are treated differently.
As mentioned, no common law offenses of strict liability exist. However, the legislature is at liberty (subject to a constitutional challenge) to exclude fault as a requirement of a statutory crime. Therefore, all strict liability offences are statutory offences, such as speeding offences.
Strict Liability May be Express or Tacit
The requirement of fault and the particular form of fault required, that is intention or negligence, may be made by the legislature to appear expressly in the statute by the use of various words such as: intentionally, maliciously, knowingly, or negligently, amongst others.
However, our courts do appear prepared to interpret a statute which is silent on the matter of fault, as tacitly excluding the requirement of fault. Our courts are reluctant though to conclude that an offence is one of strict liability.
In S v Qumbella the Court said: “the legislature must make strict liability appear plainly”. Indeed the Appellate Division has even set up the requirement of fault as a presumption. In S v Arenstein the court said: “The general rule is that actus non facit reum nisi mens sit rea, and that in construing statutory prohibitions or injunctions, the legislature is presumed, in the absence of clear and convincing indications to the contrary not to have intended innocent violations thereof to be punishable.”
The case of S v Arenstein stipulates that a court should consider the following features of a statute for clear and convincing tacit indications to oust the presumption of no punishment without fault:
a) language and context;
b) scope and object;
c) nature and extent of penalty;
d) ease with which prohibition may be averted.
As noted, whilst fault is generally a requirement for criminal liability, Parliament is at liberty to exclude fault as a requirement - though this liberty is constitutionally questionable. The Appellate Division (now the Supreme Court of Appeal) has given an indication that it may prefer the so-called middle course in which instead of concluding that the legislature intended to exclude fault and thereby finding in favour of strict liability, it will find that fault is required in the form only of negligence. This is a compromise situation in terms of which the arguably iniquitous approach of punishment without fault is averted, while still requiring of individuals a particular standard of care in their endeavors.
Which form of Fault
Once it is determined that the legislature did not exclude fault it remains to be decided what form of fault the legislature intended to apply. The default in this respect is dolus (intention), that is, a court will regard a tacit fault requirement as a requirement of dolus. However, exceptional circumstances may convince a court that fault in the form of culpa (negligence) was intended by the legislature. Negligence may be declared as the requisite fault requirement where:
1. the legislature may be regarded as requiring a high standard of care in respect of a particular activity;
2. if the legislation is directed against a dangerous and prevalent social problem;
3. if the problem concerned is one which is ordinarily committed negligently (such as negligent driving); and
4. beyond these factors, the same factors which pertain to a determination of whether fault is excluded or not, are again relevant to a consideration of the form of fault required. In this context, these factors indicate that negligence will suffice, where, in the context of whether fault is required, they would indicate in favour of strict liability. Therefore, these considerations indicate for strict liability, failing which, they indicate in favour of culpa. They are, as before:
e) Language and context;
f) Scope and object;
g) Nature and extent of penalty; and
h) Ease with which prohibition may be averted.
The case of Amalgamated Beverage Industries Natal (Pty) LTD v Durban City Council illustrates the operation of these factors. In this case, a company which bottled and distributed soft drinks had sold a contaminated drink (in that the bottle contained a bee) to a supermarket. The company had been convicted in a magistrate’s court of contravening a Durban City Council by-law which read:
“18. No person who carries on any business involving the manufacture, preparation, storage, handling or distribution of food shall in connection with such business—
(c) cause or permit any article of food or drink which is not clean, wholesome, sound and free from any foreign object, disease, infection or contamination to be kept, stored, sold or exposed for sale or introduced into the city for purposes of sale.”
The magistrate’s court determined that the by-law imposed strict liability, which view was confirmed on appeal in the Provincial Division. The company had conceded that it had sold a contaminated drink to a supermarket in Durban, but argued that the by-law was not a strict liability offence so that it could not be convicted without fault having been established. It appealed to the Appellate Division (now the Supreme Court of Appeal). The Court (Hefer JA, Eksteen JA, and Kriegler AJA concurring; Botha JA and Nienaber JA dissenting) decided the matter as follows. On the basis of the context and language, Hefer JA interpreted the words “cause or permit” to require fault in that it was more consistent with the presence of fault than with its absence.
In respect of the scope and object of the offence, the court noted that though the offence seeks to prevent danger to the public (a public welfare offence), this objective should not be “overrated”. Most penal statutes, Hefer JA held, concern the protection of the public. According to Hefer JA, public welfare offences need to be considered in the light of other determinants such as the ease with which liability may be evaded if fault is required. The court held that liability will not easily be evaded if fault in the form of culpa is required. In respect of the nature and extent of the penalty the court conceded that the offence did not impose a heavy penalty, but that there were not clear and convincing indications that the legislature had dispensed with fault.
It summarised its conclusions thus:
“Summarising what has hitherto been said we have, on the one hand, an actus reus which logically implies knowledge of the contamination of the food and is at least more consistent with the presence than the absence of mens rea [referring to fault] in that form. On the other hand we have the scope and object of the legislation. But we have seen that this object may generally be attained if mens rea [fault] in the form of culpa were to be an essential ingredient of the offence, and moreover that members of the affected class will not necessarily escape liability for the acts and omissions of their employees. The prescribed penalty is admittedly not a heavy one but, nevertheless, I find myself unable to say that there are sufficiently clear and convincing indications that the legislature intended to dispense with mens rea [fault].”
The court decided therefore that culpa was required and that the company had been negligent in that it had not adopted the standard of care that it should have, in that in the final inspection stage, too much was required of its inspectors.
Onus of proof
Despite an earlier deviation, the law now concerning the onus of proof in statutory offences is that it rests with the state even if the legislature is silent in respect of fault and a court nevertheless concludes that fault is required.
 S v Qumbella 1966 (4) SA 256 (A); S v Arenstein 1964 (1) SA 361 A.
 1997 (3) SA 527 CC.
 Paragraphs 162-177.
 Paragraphs 94-95.
 1995 (1) SACR 568 (CC).
 1966 (4) SA 256 (A).
 1964 (1) SA 361 A.
 1964 (1) SA 361 (A).
 It is regrettable that an application of these factors may well lead to contradictory conclusions so that the law – at least in this respect – may be accused of being vague and speculative.
 The language is to be interpreted to give effect to the intention of the legislature, by for example considering the meaning given to the same words used elsewhere in the statute.
 If the statute, by its scope and object, creates a “public welfare offence” (an offence which relates primarily to industry or technology) such as mining operations, factories, public transport, such offences tend to be interpreted as strict liability offences.
 Where an offence attracts severe punishment, it will tend to be interpreted as requiring fault. However, if it attracts a slight punishment, such as in the case of “regulatory offences” which are not morally reprehensible (for example, TV licence offences), a court may interpret the provision as one of strict liability.
 If fault will be particularly difficult to establish, the tendency is that it will be regarded as a strict liability offence.
 See Jansen JA in S v Ngwenya 1979 (2) SA 96 A at page 100.
 S v Ngwenya 1979 (2) SA 96 A
 In S v Melk 1988 (4) SA 561 (A) the court determined that dolus was required; that the legislature had not required such a high degree of care that culpa would suffice.
 1994 (3) SA 170 (A); also reported at 1994 (3) SA 646 (A).
 176 A-C.
 179 C-G.
 179 G.
 At page 179 E-G.
 R v Wallenfdorf 1920 AD 383.
 S v Jassat 1965 3 SA 423 A; S v Qumbella 1966 4 SA 356 A; S v De Blom 1977 3 SA 513 A.