Recent Case: General principles and specific offences

• Jurisdiction: South Africa
• Author: Louise Jordaan
• Published date: 24 May 2019
• Pages: 373-386
• Date: 24 May 2019
• Citation: (2015) 28 SACJ 373

General principles and

specic offences

LOUISE JORDAAN

University of South Africa

1 General Principles

1.1 Test for criminal capacity – juvenile offenders

In S v TS 2 015 (1) SACR 489 (WCC) the accused was found guilty of

culpable homicide on the basis of having entered a plea of guilty i n

terms of s 112(2) of the Criminal Procedure Act 51 of 1977. When she

was only 13 years old, the accused had stabbed her father with a k nife,

causing his death. On review the question was whether the accused

had lacked criminal capacity a s a result of youthfulness when she

performed the unlawf ul act. The test to determi ne criminal capacit y

of juvenile offenders is set out in s 11(1) of the Child Justice Act 75 of

2008, which provides as follows:

‘The State must prove beyond reasonable doubt the capacity of a child who

is 10 years or older but under the age of 14 to appreciate the difference

between right and wrong at the time of the commission of the alleged

offence and to act in accordance with that appreciation.’

The Act provides further more that a child of the age described i n

s11(1) is presumed to lack crim inal capacity unless the st ate proves

that he or she had criminal capacit y in accordance with s 11 (s 7(2)).

The court noted that few reported judgment s deal with the crim inal

capacity of children and that some of them were decided before the

enactment of the Child Justice Act. In some of t hese cases, the courts

followed an incorrect approach by enquiring merely whether the child

in fact had appreciated the wrongfulness of h is or her act – an enquiry,

as pointed out by the court, that relates to mens r ea instead of criminal

capacity (at para [14], referring to R v K 1956 (3) SA 353 (A) at 356F-

358F; S v M 1978 (3) SA 557 (Tk) at 558E-559B). As pointed out by

Rogers J, the requirement of crimin al capacity should be considered

independently and at a stage befor e enquir ing whether the accuse d

had mens rea.

RECENT CASES

373

(2015) 28 SACJ 373

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