Criminal Law – 6 August
Options for SA law approach to negligence:
1) Purely subjective assessment of negligence supported by JC De Wet; 2) Cultural defences – but these are based on labelling people and assuming all people with the label are the same; 3) Objective test of reasonableness with subjective factors; 4) Incorporating subjective factors into the capacity. Any argument on the basis of capacity have to contend with the Eadie judgment, need to see if it applies more generally or only in the context in which it was made Dilemma – either add objectives to a subjective test or add subjective factors to an objective tests 07:30 – Where is SA law at the moment?
Under Apartheid, AD sought to alleviate harshness of statutory crimes by requiring intention which doesn’t allow for subjective factors Manase – “could and should have done this”. Could interpreted as subjective while would interpreted as objective Specific cases
Mbombela (extract 140) 1933 (AD) – Facts: tried by jury, found guilty of murdering 9-year-old child. Accused was 18-20 years old. Children outside of hut, something with two small feet like a human. Called accused. Thought was tokoloshe. Fatal to look the tokoloshe in the face. Struck form with a hatchet several times without looking and found out it was his nephew. Defence was that it was a bona fide mistake Jury found guilty of murder and sentenced to death in applying standard of reasonableness ignoring race, superstitions, intelligence (words of AD). AD held although belief was unreasonable it was bona fide so culpable homicide rather than murder and sentenced to 18 months of hard labour 16:30
Ngema case (extract 52) – Allowed belief in superstition to be considered in negligence test but still unreasonable to kill child thought to be attacking him as tokoloshe Conduct of the accused was held to be voluntary
21:45 – mens rea considered at 500-503. Examination of standard of reasonableness....
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