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 r ight to dignity. The individual

is the foundation of society a nd law, and must not be treated as an object

or instrument. T he right to dignity i s limited by a guilt y verdict, given the

punitive and stigmatisi ng consequences which follow. The infringement of

the right to dignity wh ich follows conviction is unjustiable, un less the

nding of liabilit y is based on the offender’s control and choice. But a guilty

verdict equally resonates w ith the right to dignit y, by treating the offender

as a responsible human agent. The b asis for a guilty verdict is found ed

on blameworthiness. It follows th at the subjective element of crim inal

liability is cr ucial in the just f unctioning of the asse ssment of crimina l

responsibility. Despite an earlier r eliance on objective notions, following

the pioneering work of JC de Wet, South Afr ican law has developed into a

system of crimi nal responsibility based on a subjecti ve, principled approach

to liability, the ‘psychological approach’. The justications for, operation of,

and opportunit ies for further reneme nt of this vital feature of s ubstantive

South Africa n criminal l aw forms the fabric of this ar ticle.

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 doctri nal 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

JCde 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 ) Philoso phy and the Criminal Law (1984) 79. Professor Ashwor th is in not in

any way responsible for any inaccu racies or errors in this art icle.

** BA LL B LLM (UCT) DJur is (Leiden) PG Dip (Latin) (Wales Trin ity Saint David);

Professor, Departme nt of Public Law, Faculty of Law, Stellenbosch Un iversity. This

contribution conta ins the text of my inaug ural lectu re at Stellenbosch Univer sity,

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 denitive 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 cr ime (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 thi ng 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. Embar rassed 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 ki ll 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 ‘Overc riminal ization for lack of better op tions: A celebration of Bil l

Stuntz’ in M K larman, D Skeel and C Stei ker (eds) The Political Heart of Crimin al

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