Recent Case: General principles
Jurisdiction | South Africa |
Published date | 24 May 2019 |
Date | 24 May 2019 |
Citation | (2004) 17 SACJ 406 |
Pages | 406-408 |
Author | Managay Reddi |
CASES
General Principles
MANAGAY REDDI
University of KwaZulu
-
Natal
Mens rea
Mens rea - aberratio ictus
The accused in
S
v
Mkansi
2004 (1) SACR 281 (D, a case that came before
the court on review, had been convicted of assault with intent to do grievous
bodily harm for having struck the complainant on the head with a bottle.
The conviction arose from the following facts: The complainant and his
friend had been drinking in a tavern when they were approached by the
accused. An exchange of sorts took place between the complainant's friend
and the accused. The result was that the accused became antagonised towards
the complainant's friend. Using a bottle as a weapon, the accused then aimed a
blow at the complainant's friend. The complainant, who at that stage got up
from his seat unexpectedly, accidentally came in the way of the blow.
The accused had been convicted by the court a quo on the basis of
aberratio ictus. According to the magistrate's understanding of this principle,
if X aims a blow at Y and Z accidentally comes in the way, then X is guilty of
assault on Z.
The view of the review court, which concurs with the established
approach since
S
v
Tissen
1979 (4) SA 293 (T), to cases of this nature in South
African law, is that before there can be a conviction on the basis of aberratio
ictus there must have been dolus in the sense of dolus eventualis. In the case
under review, there was no evidence to suggest that the accused had in fact
foreseen the possibility of injuring the complainant and that he had
proceeded recklessly with the consequences of his action. Under the
circumstances, the conviction was overturned.
Mens rea — knowledge of unlawfulness
The appellant in
S
v
Ruiter
2004 (1) SACR 332 ('W) had previously assisted
the police as an informant. In casu he had been convicted in a regional court
406
(2004) 17 SACJ 406
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