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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