Comments: The (surprising) roots of the test for criminal liability for interrupted attempt in South African law

• Jurisdiction: South Africa
• Published date: 24 May 2019
• Citation: (2015) 28 SACJ 363
• Author: Shannon Hoctor
• Date: 24 May 2019
• Pages: 363-372

The (surprising) roots of the test

for criminal liability for interrupted

attempt in South African law

SHANNON HOCTOR

University of KwaZulu-Natal

1 Introduction

Jerome Hall (‘Criminal attempt – a st udy of foundations of crimina l

liability’ (1940) 49 Yale LJ 789) has written that

‘[w]hoever has speculated on criminal attempt will agree that the problem is

as fascinating as it is intricate. At every least step it intrigues and cajoles; like

la belle dame sans merci, when solution seems just within reach, it eludes

the zealous pursuer, leaving him [or her] to despair ever of enjoying the

sweet fruit of discovery.’

In the US case of Hicks v Commonwealth (19 Am State Rep 891 at 893)

the court stated that

‘[i]t has truly been said by a philosophical writer that “the subject of criminal

attempt, though it presses itself upon the attention wherever we walk through

the elds of criminal law, is very obscure in the books, and apparently not

well understood either by the text-writers or the judges”. And it may be

added that it is more intricate and difcult of comprehension than any other

branch of the criminal law.’

This note will exam ine the act component, in the context of interrupted

attempt, ‘where the accused’s actions are interrupted by some outside

agency so that the crime can not be completed’ (PJ Visser & MC Maré

General Principles of Cr iminal Law Through the Cases 3ed (1990) 621).

The central inquir y in ascertai ning liability is whether a per son has

moved beyond the stage of preparation, where no criminal li ability

for attempt applies, to the stage of execution, where there can be

criminal l iability for attempt (CR Snyman Criminal La w 6ed (2014)

277; JM Burchell Principles of Cr iminal Law 4ed (2013) 538). It will

be argued that whilst t he law of the United States of America has not

served as the basis for any substantive crim inal law development in

South Africa, in contr ast to Roman-Dutch or English sources (for a

detailed discussion of the hi storical development of the substantive

aspects of South Af rican crimin al law, see EM Burchell, JRL Milton &

JM Burchell South African Criminal Law and Pr ocedure Vol I: General

Principles of C riminal Law 2ed (1983) 11ff), the test used to determine

363

(2015) 28 SACJ 363

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