Recent Case: General principles of liability

• Jurisdiction: South Africa
• Published date: 24 May 2019
• Pages: 235-237
• Author: Managay Reddi
• Date: 24 May 2019

RECENT CASES • VONNISSE

General principles of liability

MANAGAY RED D I

University of Durban-Westville

Sane automatism

S v Henry

1999 (1) SACR 13 (SCA) concerned an appeal against convictions

by the Cape Provincial Division on two counts of murder and one count

of pointing a firearm in contravention of the Arms and Ammunition Act 75 of

1969. The two counts of murder related to the deaths of the appellant's

former wife and her mother. Both deceased were killed pursuant to an

argument that the appellant had had with his erstwhile spouse.

The basis of the appellant's defence was that he lacked criminal

responsibility, not as a result of an inability to appreciate the distinction

between right and wrong, or of acting in accordance with such an

appreciation, but as a result of 'acting' at the crucial time, in a state of

automatism which had not been caused by mental pathology.

In assessing this defence, Scott JA with Streicher JA and Ngoepe AJA

concurring reiterated the following: An essential element of criminal liability is

met if a cognitive or voluntary act is committed; and it is a well established

principle of South African law that where the 'commission of . . . an act is put in

issue on the ground that the absence of voluntariness was attributable to a

cause other than mental pathology' the onus rests on the state to establish this

element beyond a reasonable doubt. The state is assisted in discharging this

onus by the natural inference that, in the absence of exceptional circum-

stances, a sane person engaging in conduct which ordinarily gives rise to

criminal liability does so consciously and voluntarily. The court continued by

stating that before this inference would be disturbed a suitable foundation had

to be laid, that was adequately cogent and compelling to create a reasonable

doubt as to the voluntary nature of the alleged act and, if involuntary, that

this was as a result of some cause other than mental pathology.

Defences such as non-pathological automatism require prudent examina-

tion. The evidence of the appellant that his act was involuntary and

unconsciously committed, must be objectively appraised and considered

235

(1999) 12 SACJ 235

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