Talking Point [in between]

A discussion of a topical legal matter

Criminal law is not listed under our Legal Services, but we remain up to date.

The subject of one person causing the death of another human being is currently seemingly crossing the border between a serious official matter and mere entertainment for the masses.

This in between issue contains discussions of the essential elements of the crime of murder, and a lesser known defence.

As always, I would greatly appreciate your feedback on Talking Point. Please email me at

Regards Charl Theron

In this issue:

  • Murder, Part 1: The Elements of the Crime

    What the State has to prove.

  • Murder, Part 2: Non-Pathological Criminal Incapacity

    Courts are sceptical about a defence of temporary criminal incapacity.


    Murder, Part 1: The Elements of the Crime

    Jerome Veldsman
    by Jerome Veldsman

    Murder is the unlawful and intentional causing of the death of another human being. The essential elements that the State must prove for a conviction are:

    • that the perpetrator caused the death (killing) of another human being;
    • that such killing was unlawful; and
    • that such killing was intentional.

    In a criminal case, the State has to prove the essential elements of the crime beyond a reasonable doubt. Many books have been written on what beyond a reasonable doubt means in practice. Courts generally refuse to reduce it to a percentage, but the rule of thumb is at least 90+% certainty. In a civil case, the onus of proof is on a balance of probabilities, meaning more than 50% certainty. The high level of proof required in a criminal case makes the default position to give the accused the benefit of the doubt. In reality, many guilty persons escape conviction, but hopefully wrong convictions are kept to a minimum.

    In law, the perpetrator will only have caused the death if he did so by a voluntary act. If the perpetrator lacked criminal responsibility (thus in law acted involuntary) at the time of ‘causing’ the death, he is acquitted. In this context, for adults, the main defences are mental illness and non-pathological criminal incapacity. The latter is the topic of the next article.

    The killing will be unlawful if there is no ground of justification, such as private defence (commonly, but less accurately, referred to as “self-defence”, and called noodweer in Afrikaans). Private defence is the use of force against an unlawful attack in defence of one’s own life or physical integrity (or property), or that of another. The test for private defence is objective – would a reasonable person in the position of the accused have acted in the same manner. Private defence is only justified:

    • if it is reasonably considered necessary in the circumstances;
    • if directed at the actual attacker;
    • against an attack that has already commenced or is immediately imminent; and
    • if the measure of force used is reasonable in the circumstances.

    If a perpetrator honestly believes his life (or property) to be in danger, but objectively viewed it is not, the defensive steps he takes cannot constitute private defence. If in those circumstances he kills someone, his conduct is unlawful.

    Consent to the killing by the victim does not exclude unlawfulness. Euthanasia is murder in South Africa.

    The legal meaning of the term ‘intentional’ is wider than the meaning in ordinary discourse. The killing will be intentional in any one of the following five instances. If the perpetrator:

    • deliberately kills the intended victim;
    – Example: X wishes to kill specifically Y; and does so. X is obviously guilty of murdering Y.
    • deliberately kills the wrong victim;
    – Example: X wishes to kill specifically Y; but mistakes Z for Y, and kills Z. X is guilty of murdering Z.
    • foresees that killing the victim will inevitably follow him doing something else, but nevertheless he does the something else;
    – Example: X wishes to kill specifically Y; and snipes Y whilst the latter is driving a car at high speed over Chapman’s Peak. X foresees that passenger Z (whom he has no specific wish to kill) in the car will also inevitably die. X is guilty of murdering Z (and Y of course).
    • although not having any actual intent to kill, but foreseeing the real possibility of his act resulting in death to a human being, he persists in the act, reckless of whether death ensues or not;
    – Example: X wishes to shoot at a mannequin in a shop window across a busy street with his crossbow. X does not wish to kill anyone, but foresees the real possibility of his act resulting in death to a human being. The unlucky Y happens to be walking on the sidewalk next to the mannequin, and the arrow kills Y. X is guilty of murdering Y.
    • although not having any intent to kill any specific person, he performs an act bound to kill someone;
    – Example: X wishes to make a political statement, and plants a time bomb on an aeroplane. The unlucky passengers Y and Z die in the explosion. X is guilty of murdering Y and Z.

    If the perpetrator unlawfully and intentionally attempts to kill another human being, but fails in the attempt, the perpetrator is guilty of attempted murder (not murder).

    If the perpetrator unlawfully causes the death of another human being, without the intention to do so, but the perpetrator acted negligently, the perpetrator is guilty of culpable homicide (not murder). A finding of guilty of culpable homicide is a competent verdict for a murder charge, and need not be stated in the charge sheet as an alternative charge.

    If the perpetrator erroneously believed that his life was in danger and killed the ‘attacker’ (putative private defence), depending upon the precise circumstances, the erroneous belief may exclude intent, and the perpetrator will be guilty of (only) culpable homicide.

    In general, other factors being equal, the punishment for murder is more severe than that for attempted murder, and significantly more severe than that for culpable homicide.

    Murder, Part 2: Non-Pathological Criminal Incapacity

    Jerome Veldsman
    by Jerome Veldsman

    The test for criminal capacity is as follows. The accused must have been able:

    • to distinguish between right and wrong, and
    • to act in accordance with that realisation by resisting the temptation to act unlawfully.

    If a murder accused succeeds with a defence of (pathological) mental illness, he is acquitted (of murder and culpable homicide), but is usually committed to a mental institution.

    If a murder accused succeeds with a defence of non-pathological criminal incapacity, he is acquitted (of murder and culpable homicide). As non-pathological criminal incapacity is of a temporary nature, the accused is also not found to suffer from mental illness.

    The term non-pathological criminal incapacity was coined in a 1987 judgment (S v Laubscher) to distinguish between:

    • criminal incapacity due to mental illness; and
    • criminal incapacity due to a total psychological breakdown or disintegration of personality of a temporary nature with the effect that the perpetrator acted involuntarily.

    In the appeal judgment in the well-known 1999 Ou Kaapseweg hockey stick road rage murder (S v Eadle), non-pathological criminal incapacity was equated with the more traditional sane automatism.

    The defence of sane automatism is only successful if there is sufficiently convincing factual and medical expert evidence to raise a reasonable doubt about the voluntary nature of the relevant act. This defence is met with some scepticism, but has succeeded in respect of epileptic fits.

    In an instance where an accused raises the defence of non-pathological criminal incapacity:

    • the State is assisted by the natural inference that, in the absence of exceptional circumstances, a sane person, who engaged in conduct which would ordinarily give rise to criminal liability, did so consciously and voluntarily;
    • the accused must lay a foundation for this defence sufficient at least to create a reasonable doubt on the point; and
    • evidence in support of this defence has to be very carefully scrutinised.

    In order for an ‘otherwise sane’ perpetrator to escape liability, sufficient evidence is required that his psyche had disintegrated to the extent that he was unable to exercise control over his movements. The actions of the perpetrator before, during, and after the event are thus scrutinised. Planned, goal-directed, and focused behaviour indicate presence of cognitive control. A detailed recollection of events militates against loss of control. Loss of temper or being overcome by temptation must not to be confused with loss of control.

    The defence of non-pathological criminal incapacity is somewhat of a “Catch 22”. If the accused discloses a coherent version of events in an affidavit, or in cross examination of witnesses for the State, he essentially negates the defence (as he avers to have a detailed recollection of events). If the accused does not disclose a coherent version of events, he is constrained in questioning the version of the State.

    The defence of non-pathological criminal incapacity is met with much scepticism. In the road rage and family murder cases to date it has failed. Activists tried to have ‘battered woman syndrome’ acknowledged as non-pathological criminal incapacity, but without success.

    If an accused fails with a defence of non-pathological criminal incapacity, the evidence in such regard can be used as sentencing stage to argue diminished responsibility and a lesser sentence.