Provocation: Acquittals provoke a rethink
| Jurisdiction | South Africa |
| Date | 24 May 2019 |
| Pages | 337-352 |
| Author | Sivakalay Pather |
| Citation | (2002) 15 SACJ 337 |
| Published date | 24 May 2019 |
Provocation:
Acquittals provoke a rethink
SIVAKALAY PATHER*
'...Nor only tears
Rained at their eyes, but high winds worse within
Began to rise, high passions — anger, hate,
Mistrust, suspicion, discord — and shook sore
Their inward state of mind, calm region once
And full of peace, now tost and turbulent.'
John Milton
Paradise Lost
[IX, 1121-6]
Abstract
Should provocation remain in South African law as a defence to a conviction of
murder? If so, should the defence result in the accused being convicted of culpable
homicide rather than murder, or should the accused be acquitted?
A successful defence in foreign jurisdictions results in a conviction of
manslaughter, whereas in South African courts the accused may be acquitted.
This article supports the view that if the defence proves successful, then the
accused should not be acquitted, but instead be convicted of culpable homicide.
This article further analyses what the appropriate test should be to assess criminal
liability.
Introduction
The South African history of provocation
1
goes back to s 141 of the Transkein
Penal Code. This first emerged in 1925 in
R v Butelezi
2
where the Appellate
Division held that s 141 of the Transkein Penal Code
3
correctly expressed our
common law on the subject of provocation. The material provisions of the
Code were as follows:
4
*
BA, LLB, LLM, HED,
Junior Lecturer, School of Law, University of Natal, Durban, Researcher
for the Constitutional Court.
1
Provocation — '... courts have not yet drawn a dear distinction between provocation and
emotional stress. ... [P]rovocation is usually seen as being caused by human beings.
Emotional stress, which often involves an accumulation of events over a reasonable period of
time, rather than an isolated event or events, can, and often is, caused equally by human
beings or by surrounding circumstances.' in J Burchell and J Milton
Principles of Criminal Law
2 ed (1997) 288.
2
1925 AD 160 at 162.
3
Act 24 of 1886 (C).
4
R v Butelezi
supra (n 2) at 162, See also Burchell and Milton op cit (n 1) 279.
337
(2002) 15 SACJ 337
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338
SACJ •
(2002) 15 •
SAS
'Homicide which would otherwise be murder may be 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 Transkein Penal Code looks at a type of 'partial excuse situation'
5
where
it deals with the effect that provocation would have if the accused was
charged with murder — 'Homicide which would otherwise be murder may
be reduced to culpable homicide'.
6
Provocation 'serves to negative intention'
with the result that the accused is not acquitted but found guilty of a lesser
crime than murder.
7
In
R v Tenganyika
8
the Federal Supreme Court of
Rhodesia, relying on the Privy Council decision in
A
-
G of Ceylon v Perera
9
,
held that provocation may assist in reducing murder to culpable homicide
even where there is an intention to kill.
10
The doubt that existed in South
African law on the point was resolved in the case of
R v Krull
11
where
Schreiner JA stated:
'Under our system it does not follow from the fact that the law treats intentional
killing in self-defence, where there has been moderate excess, as culpable
homicide, that it should also treat as culpable homicide a killing which though
provoked was yet intentional. Since a merely provoked killing is never justified
there seems to be no good reason for holding it to be less than murder when it is
intended.'
12
The defence of provocation has been successfully used in a number of
cases
13
and this has caused the public to fear whether the law is in fact
5
Burchell and Milton op cit (n 1) 280.
6
Act 24 of 1886 (C).
EM Burchell and PMA Hunt
South African Criminal Law and Procedure
2 ed (1983) Vol 1
307.
8
1958 (3) SA 7 (FC).
9
1953 AC 200 (PC). The Privy Council recognised that acts done by a man after he has lost
control of himself may still be intended. In
R v Tenganyika
the court stated that 'to suggest that
provocation is only a defence when it excludes the intention to kill is to narrow its limits
unwarrantably' at 12E-F.
Burchell and Hunt op cit (n 7) 243.
11
12
R v Krull
supra (n 11) at 399.
13
See
S v Arnold
S v Campher
S v Wiid
1990 (1) SACR
561 (A);
S v Nursingh
S v Moses
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