Sharpening the subjective element of criminal liability in South African law
Citation | (2023) 36 SACJ 462 |
DOI | https://doi.org/10.47348/SACJ/v36/i3a5 |
Published date | 13 March 2024 |
Pages | 462-480 |
Author | Hoctor, S. |
Date | 13 March 2024 |
Sharpening the subjective element
of criminal liability in South
African law*
SHANNON HOCTOR**
ABSTRACT
South Africa n criminal law holds to a conception of huma n beings as morally
autonomous, which is consistent with the right to dignity. The individual
is the foundation of society and law, and must not be treated as an object
or instrument. The right to dignity is limited by a guilty verdict, given the
punitive and stigmatising consequences which follow. The infringement of
the right to dignity which follows conviction is unjustiable, unless the
nding of liabilit y is based on the offender’s control and choice. But a guilty
verdict equally resonates with the right to dignity, by treating the offender
as a responsible human agent. The basis for a guilty verdict is founded
on blameworthiness. It follows that the subjective element of criminal
liability is crucial in the just functioning of the assessment of criminal
responsibility. Despite an earlier reliance on objective notions, following
the pioneering work of JC de Wet, South African law has developed into a
system of crimi nal responsibility based on a subjecti ve, principled approach
to liability, the ‘psychological approach’. The justications for, operation of,
and opportunities for further renement of this vital feature of substantive
South African criminal law forms the fabric of this article.
1 Introduction
The question of individual cri minal responsibility is fundame ntal to the
substantive criminal law. The subjective element of criminal liability
in South African law has been sharpened by doctrinal development
through the cases, provoked by the work of JC de Wet.1 My criminal
law journey began at UCT under Solly Leeman, apparently one of
JCde Wet’s nest criminal law students, who naturally instilled in me
*I acknowledge my debt to And rew Ashworth for the title of thi s article. He published
‘Sharpeni ng the subjective element in crimin al liability’ in A Duff and N Si mmonds
(eds) Philosophy and the Criminal Law (1984) 79. Professor Ashworth is in not in
any way responsible for any inaccu racies or errors in this article.
** BA LLB LLM (UCT) DJuris (Leiden) PG Dip (Latin) (Wales Trinity Saint David);
Professor, Department of Public Law, Faculty of Law, Stellenbosch University. This
contribution contains the text of my inaugural lecture at Stellenbosch University,
delivered on 2 November 2023.
1 JC de Wet and HL Swanepoel Strafreg (1949); 2ed (1960); 3ed (by JC de Wet) (1975);
4ed (by JC de Wet) (1985).
https://doi.org/10.47348/SACJ/v36/i3a5
462
(2023) 36 SACJ 462
© Juta and Company (Pty) Ltd
the incontrovertible superiority of JC’s theoretical views. I shall rst
trace the historical development of criminal responsibility in South
Africa, highlighting De Wet’s denitive contribution, before discussing
the current legal position, and how the subjective element may further
be sharpened. When we talk of a subjective approach to liability, it is
simply that it is the perspective of the person accused of a crime (the
accused) that matters: his insight, his estimates, his decision, his point
of departure, and not the perspective of anyone else.
Bill Stuntz, the Harvard criminal lawyer has said that as academics
‘we know less than we claim to know, and we are not as smart as we
claim to be. Our theories may be beauti ful things to behold (if anything
published in a law review can fairly be called a thing of beauty), but
they tend to ignore a great deal of messy reality – especially the
reality of our own limits.’1 This too is my own point of departure. So
I confront the vexing plight of the academic: to simultaneously worry
about being uninteresting and about being wrong.2
Allow me to place two scenarios before you:
Scenario 13
A husband is serially unfaithful to his wife, and has rejected his
disabled children, who require his wife’s ongoing attention. His wife is
consequently extremely stressed and on medication. One d ay he comes
home after having been out the whole day. A friend is visiting the wife,
who is emotionally overwrought. She suspects that her husband has
gone back to his lover, after promising her that the affair was over. She
provides her husband with food. He asks ‘Why are you looking at me?’
and gets up from the table to fetch a tape recorder. He likes to record
their arguments. Embarrassed in the presence of her friend, she tries
to switch off the tape recorder and it falls to the ground. Her husband
proceeds to violently assault her, breaking her nose and knocking out
one of her teeth while splintering others. Her glasses are broken. Her
nose and mouth are bleeding profusely. Her husband declares that he
is leaving. Her friend tries to clean up the blood. Later she hears shots.
After he threatened to kill his wife, she picked up his pistol and red
seven shots at him. Is this murder?
1 WJ Stuntz ‘Ch ristian legal theory’ (2003) 116 Harv L Rev 1707 at 1741.
2 D Richman ‘Overcriminalization for lack of better options: A celebration of Bill
Stuntz’ in M Klarman, D Skeel and C Steiker (eds) The Political Heart of Criminal
Procedure – Essay s on Themes of William Stuntz (201 2) 64.
3 See n40 infra.
Sharpening the subjective element of criminal
liability in South African law 463
https://doi.org/10.47348/SACJ/v36/i3a5
© Juta and Company (Pty) Ltd
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