A provocative response to subjectivity in the criminal law

• Jurisdiction: South Africa
• Published date: 15 August 2019
• Date: 15 August 2019
• Pages: 23-47
• Author: Jonathan Burchell

A provocative response to subjectivity in the

criminal law

JONATHAN BURCHELL*

University of Cape Town

I THE BACKGROUND

The criminal law is riddled with numerous value-laden judgements:

distinctions between the extent of criminal liability attaching to acts

rather than omissions; between the factual and the legal chain linking

conduct and consequence; between the criminal results of prohibited acts

perpetrated under pathological, as opposed to non-pathological, inf‌lu-

ences; between criminality of intentional as opposed to negligent

conduct; between the degree of liability of perpetrators and accessories;

and between completed and inchoate offences. Value-laden judgements

implicit in these decisions leave inherent scope for discretion and

discretion, of course, permits an essential balancing of interests.

Tension between descriptive and normative rules in the criminal law is

no more apparent than in the attitude of the courts to the predicament of

a killing that was provoked.

1

Should the law even countenance provoca-

tion as a defence to criminal liability, as opposed to recognising that

provocation could serve to mitigate the severity of sentence? Should the

law adopt a middle course by acknowledging some limited hybrid form of

defence whereby conduct, which would otherwise have been suff‌icient

to constitute full-blown criminal conduct, might be ‘partially excused’, if

perpetrated under severe provocation? Should the law give the defence its

fullest possible legal relevance by concluding that provocation, of

suff‌icient degree, could completely negate criminal liability? If provoca-

tion raises an issue of criminal capacity, then is this capacity judged

entirely subjectively or is there an objective, normative dimension to the

capacity inquiry?

2

*BA LLB (Natal) LLM Diploma in Comparative Legal Studies (Cantab) PhD (Wits),

Professor of Criminal Law, University of Cape Town.

1

The term ‘provocation’ in this chapter is used as covering its broader relative ‘emotional

stress’. On the theoretical distinction between the two concepts, see J Burchell and J Milton

Principles of Criminal Law 2ed (1997, revised reprint 2002) 288 where it is suggested that the

origin of the stressful condition should not matter in principle, but could effect the intensity or

severity of the ultimate condition.

2

Professor C R Snyman in this very volume of Acta Juridica argues that the judgment of

Navsa JA in S v Eadie 2002 (1) SACR 683 (SCA) is a ‘triumph for the policy approach to

provocation, and heralds a defeat of the purely theoretical approach to this defence’ (at 14).

According to Snyman, at the end of the day, the defence of provocation after Eadie exists in

name only because the court equates the defence in its non-pathological form with the defence

23

2003 Acta Juridica 23

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At some stage or other in the development of the South African rules

relating to provocation, the courts have in fact f‌lirted with virtually the

full spectrum of apparent solutions to the dilemma. One solution, which

understandably has not openly been countenanced, for obvious constitu-

tional reasons, is tampering with the sacrosanct presumption of inno-

cence.

3

Another extreme solution always waiting in the wings is, of

course, legislative reform of the common law but, as yet, the South

African criminal law has not taken this route.

Roman and Roman-Dutch law did not regard anger, jealousy or other

emotions as an excuse for any criminal conduct but only as factors, which

might mitigate sentence, if these emotions were justif‌ied by provocation.

The Rumpff Commission of Inquiry into Responsibility of Mentally

Deranged Persons and Related Matters in 1967, although it recom-

mended that an examination of the cognitive and conative functions of

the mind be accommodated within the legal test of criminal capacity, did

not consider that the affective functions of the mind, which regulate

emotions such as hatred, love, and jealousy, should be relevant to criminal

liability,

4

as opposed to punishment.

This sensible approach of the Roman and Roman-Dutch law and the

sage advice of the Rumpff Commission were, however, not heeded by

in its automatism form. It is argued in the present chapter that Snyman has overstated the effect

of Eadie on both these issues.

3

As an exception to the general rule that the prosecution bears the overall burden to prove

the existence of all elements of criminal conduct beyond reasonable doubt, the accused in

South Africa is held to bear the burden of proving, on a balance of probabilities, insanity. This

exception is of dubious constitutional validity but has been endorsed by both the courts and the

legislature (s 78(1A) of the Criminal Procedure Act 51 of 1977, inserted by s 5(b) of Act 68 of

1998). Section 78(1B) of the Criminal Procedure Act, also inserted by the same section of Act

68 of 1998 and which came into operation on 28 February 2002 states that ‘[w]henever the

criminal responsibility of an accused with reference to the commission of an act or omission

which constitutes an offence is in issue, the burden of proof with reference to criminal

responsibility of the accused shall be on the party who raises the issue’. If taken out of context,

this loosely-worded section could be invoked to argue that the legislature has, in fact, shifted

the onus of proving lack of criminal responsibility (ie capacity) onto the accused, not only in

cases where insanity is raised by the accused as a defence but also in cases where non-pathological

incapacity is raised as a defence. This conclusion, it is submitted, is not justif‌ied. The amending

legislation is clearly designed to regulate matters relating to pathological mental conditions not

non-pathological conditions, and, furthermore, the original portion of s 78(1), which still stands,

patently uses the phrase ‘criminally responsible’in the context of insanity. It would be

extravagant, and involve an infringement of the fundamental presumption of innocence –the

justif‌iability of which has not yet been judicially determined –to contend that the legislature

intended to override, impliedly and in one loosely-worded phrase, decades of judicial

precedent supporting placing no more than an evidential burden on an accused who raises

non-pathological incapacity as a defence.

4

Similar sentiments seem to be echoed by the words of Lord Justice-General (Rodger) in

Galbraith v Her Majesty’s Advocate 2001 SCCR 551 (High Court of Justiciary): ‘. . . the law

makes no such allowance for failings and emotions, such as anger and jealousy, to which any

normal person may well be subject from time to time. They do not call for the law’s

compassion. Rather, we must master them or face the consequences’(para51).

24 CRIMINAL JUSTICE IN A NEW SOCIETY

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