Comment: S v Eadie: The end of the road for the defence of provocation?

• Jurisdiction: South Africa
• Author: Ronald Louw
• Date: 03 September 2019
• Published date: 03 September 2019
• Pages: 200-206
• Citation: (2003) 16 SACJ 200

COMMENTS

S v Eadie:

The end of the road for

the defence of provocation?

RONALD LOUW

University of Natal, Durban

Introduction

On 12 June 1999 the accused, G M Eadie, killed the deceased, K A Duncan, in

fit of road rage. At his trial he alleged that he lacked capacity due to a

combination of emotional stress, alcohol and having been provoked by the

deceased. He admitted that at the time of the killing he was able to

appreciate the difference between right and wrong but that he was unable to

control himself in accordance with that appreciation. In short, he lacked self-

control. The trial court dismissed his defence and found him guilty of murder

(S v Eadie

(1) 2001 (1) SACR 172 (C)). His appeal to the Supreme Court of

Appeal

(S v Eadie

2002 (1) SACR 663 (SCA)) was likewise turned down, but it

gave the court, per Naysa JA with Olivier and Streicher JJA concurring, the

opportunity to clarify an important aspect of the defence generally known as

non-pathological criminal incapacity.

Non-pathological criminal capacity and self-control

The requirements for the defence derive from s 78(1) of the Criminal

Procedure Act 51 of 1977, as amended:

'A person who commits an act which constitutes an offence and who at the time of

such commission or omission suffers from a mental illness or mental defect which

makes him or her incapable—

(a)

of appreciating the wrongfulness of his or her act or omission; or

(b)

of acting in accordance with an appreciation of the wrongfulness of his or her

act or omission, shall not be criminally responsible for such act or omission.'

Although the above was originally formulated as a defence for pathological

incapacity, it was readily adapted to non-pathological defences such as

intoxication, emotional stress and provocation. (Although the terms

emotional stress and provocation are often used synonymously, emotional

200

(2003) 16 SACJ 200

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