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Criminal Law Fault Culpa Notes

Culpa and Dolus Notes
Course

Criminal law (LAWS 2014)

941 Documents
Students shared 941 documents in this course
Academic year: 2023/2024
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Kwazi Nkanyiso Nyaba
University of the Witwatersrand, Johannesburg
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MS STAROSTA’S CLASS

CRIMINAL LAW

LAWS2014A/3040A/3053A

FAULT – CULPA

NEGLIGENCE

________________________________________________________________________

GENERAL

All common law crimes require dolus with the exception of culpable homicide and contempt of court. On the other hand, there are a number of statutory crimes which require negligence (culpa) as the requisite fault element.

Negligence is the failure to adhere to a prescribed standard required by law, that is, the accused fails to act as a reasonable man would have acted in the circumstances. Negligence thus, connotates the falling short of a reasonable man standard which is determined partly by what a reasonable man would have done in the circumstances and partly by what law requires reasonable people to have done in the circumstances.

Unlike the test for intention which is subjective, the test for negligence is objective. We do not ask what the Accused subjectively foresaw, we ask what a reasonable person would have foreseen and done in the circumstances.

DISTINCTION BETWEEN DOLUS AND CULPA Culpa is a lessor form of fault than dolus. This does not however mean that culpa will always attract a lighter sentence than dolus as there may be mitigating factors used in sentencing when dolus is present and aggrevating factors when culpa is present (for instance where the Acc fell far short of the reasonable man standard).

CONCEPT OF CONSCIOUS NEGLIGENCE We mentioned this when discussing DE. It is possible that an Acc is negligent (in that he fails to take the steps that a reasonable person would have to guard against harm) and at the same time, he subjectively foresees a remote possibility of death. `It is proposed that where only a faint or remote possibility of death is foreseen, culpa exists and not dolus. – This is called conscious negligence.

R v Hedley ‘ A fired a shot at a bird which was just emerging from beneath the surface of water in a dam (presumably the bird was hunting fish). The bullet missed the bird, struck the water and ricocheted off the water killing a girl a considerable distance away on the other side of the dam near some huts.

The Acc subjectively foresaw that if the bullet were to ricochet, it may hit someone in the vicinity of the huts but the likelihood of that happening when aiming straight into the water was very slim in his opinion. The Acc was convicted of culpable homicide as it could not be established that he reconciled himself to the possibility of death.

NB: n This case is in line with the Ngubane which states that foresight of a remote possibility is not sufficient to establish DE. n It would thus appear that where there is foresight but of a remote possibility, then the Acc cannot be said to have renconciled himself and thus, there is no DE but there is conscious negligence. n Conscious negligence would probably attract a higher sentence than regular negligence.

DOLUS DOES NOT EXCLUDE CULPA The finding of dolus does not exclude the existence of culpa, this means that if an Accused foresaw the real possibility of death and acted reckless in that regard, he will likely have also fallen short of a reasonable man standard. Thus, culpa usually coincides with dolus but that does not mean that an Acc will be liable for both murder and culpable homicide. Culpable homicide is a competent verdict for murder, thus, on a charge of murder, if DE cannot be established but culpa can, then the Acc is liable for culpable homicide. The above principle does not operate the other way around: if an Acc is charged with the lessor crime (culpable homicide) but DE is established during trial, the Acc can only be found guilty of culpable homicide. `For this reason, the State usually charges an Acc with murder.

S v Ngubane ‘ The Acc was charged with murder. He pleaded guilty to CH which plea was accepted by the State. At trial, the Court found DE and convicted the Acc of murder. `On appeal, the AD set aside the conviction holding that the Court acted irregularly in adjudicating a case of murder where the Acc had pleaded guilty to CH. They should have rejected the plea if they wanted to find the Acc guilty of murder.

TEST FOR NEGLIGENCE

`The test for negligence, established in the case of Kruger v Coetzee is as follows:

  1. Would a reasonable person in the position of the Acc have foreseen the possibility of the unlawful consequence (death)?;
  2. Would a reasonable person in the position of the Acc have taken steps to guard against that possibility?;
  3. Did the Acc fail to take the steps which he ought to have taken? (prevention)

There is only one reasonable man, the ordinary citizen who adheres to the constitution and has ordinary knowledge.

ARGUMENT: The argument in Mbombela is that even if it were heard now, it is very likely that A would still be found guilty of CH. The community’s outrage showed that even if we considered what a reasonable man in that community, with those beliefs would have done, we would have found that A still fell short of a reasonable man standard. It is proposed that a RM who believes in the tokoloshe would have done more to establish that it was in fact an evil spirit, perhaps he would have fetched other more senior men to assist, perhaps he would have waited to get a clearer view instead of relying on the say so of kids who are prone to foolishness. A reasonable man in the community would have foreseen that it was just a child and would have guarded against this possibility by verifying whether a small child belonged to that household.

Thus, the proposition is that it is still possible to make a normative, objective assessment if we take into account culture but the standard is still one standard. For instance, a satanist who sacrifices human children cannot be judged against the standard of a reasonable satanist – this would go against the Constitution as religious beliefs are allowed as long as they do not translate into actions which harm others.

QUALIFICATIONS TO THE OBJECTIVE TEST

Some argue that we do qualify the objectivity of the test and make it subjective, for instance, a doctor is judged not by the ordinary RM standard but by the standard of a reasonable doctor. The proposition is that this is not a qualification or exception at all, the test allows us to determine what a RM in the position of the Acc would have done. `We look to the objective physical position and if the Acc happens to be a doctor, then he must be judged according to the standard expected of a doctor. This is still objective as all reasonable doctors act in a certain way.

  1. In the case of people who profess to be experts, a higher standard of care is required.

Is this a qualification? à no, because a reasoanble man does not profess to have skills which he does not possess.

  1. In the case of an actual expert, he is expected to possess a specialised skill

Is this a qualification à no, we are simply holding him to the standard of a reasonable man with that skill (Mahlalela).

  1. When we look to a RM in the position of the Acc?

Is this a qualification à no, we are looking to the external, physical position of the Accused and not his personal circumstances. For instance, would a reasonable person with only one eye have foreseen. (Southern)

Examples:

  1. When a surgeon operates on a patient and the operation required specialised skill which the surgeon did not have:

The negligence is unreasoanbly engaging in an activity which involves risk to others without possessing the requisite degree of skill. Thus, we are not holding him up to the standard of someone with that skill, we are saying that a reasonable man does not perform operations on people without possessing the required skills.

  1. Someone drives a bus without a license and has an accident due to lack of driving skill:

A reasonable man would not have undertaken the task of driving without having the skills to drive a bus.

S v Mahlalela ‘ A, a sangoma had given a girl a herbal potion to drink. The potion was poisonous and caused her death.

HELD: A was convicted of CH. Although A did not foresee that the potion was poisonous (lacked DE), he OUGHT to have realised since he professed specialised knowledge of herbs. A reasonable man does not profess to have skills which he does not possess. He was judged by the standard of a RM who knew about herbs.

Distinguish from:

S v Van der Mescht ‘ See facts from previous notes. AD held that a RM would not have realised that heating gold amalgam would release poisonous gasses. `Someone who had such knowledge would have fallen short of a reasonable man standard.

A REASONABLE MAN IN THE POSITION OF THE ACCUSED

As stated above, in applying the RM test, we must take account of the external conditions present at the time – we do not attribute personal characteristics of the Acc but we do attribute all objectively identifiable conditions. Eg: if Acc was in an emergency, if Acc had only one leg, if the conduct occurred when it was dark outside, if the Acc was standing outside with the light in his eyes etc.

As a result, B who was a very fat man, lost his balance, fell backwards, and hit his head on the cement floor and died. Trial Court convicted A for CH. On appeal:

HELD: A could only be convicted of assault. It could not be proven that a RM would have foreseen death from a hard slap on the cheek. Only bodily injury was foreseeable.

NOTE: The case would have been different for instance if A had pushed B and they were standing near a curb. A RM would foresee that B would fall and hit his head on the curb. Alternatively, factors such as whether the floor was slippery, whether there were hard edges all around would all factor into what a reasonable man would foresee in the circs.

THIN SKULL RULE `What do the above principles suggest about the think skull rule? Whilst the rule helps us to establish causation, it is likely that the Acc in a thin-skull type of case will not be found liable for CH unless the RM had reason to know about the condition.

Eg. A reasonable man can see that a man is slight and that a mild assault upon the man could be fatal but a RM does not necessarily see that the man has a soft spot on his skull and that a soft hit with a stick would cause the stick to penetrate the victim’s skull.

PREVENTABILITY: WOULD A REASONABLE MAN HAVE TAKEN STEPS TO GUARD AGAINST

The issue of whether a RM would have taken steps to guard against the unlawful consequence in a criminal law context is far less contentious than in the delictual context. In the delictual context, the wrongful consequence is usually harm which may be physical but which is often merely financial/pecuniary. In the criminal law context, the unlawful consequenc is usually death and is always a crime. `A reasonable man does not commit crime and thus the question of whether a RM would have taken steps to guard against the unlawful consequence is always answered in the affirmative.

`In delict, whether a reasonable man would have taken preventative steps to avoid harm is determined by weighing up the magnitude of the risk against the disadvantages of taking precautions as follows:

  1. The probability of the harm ensuing as a result of the conduct;

  2. The seriousness of the harm, were it to materialise;

  3. The social utility of the harm producing conduct;

  4. The cost and difficulty of taking precautionary measures.

  5. & 2. (the magnitude of the risk) are weighed against 3. & 4. (the disadvantages of taking precautions) to establish whether the RM would have taken steps to guard against the foreseeable harm.

As stipulated above, in criminal law, there would never be a situation where the reasonable man would not guard against committing a crime and if there were, this would probably fall under GROUNDS OF JUSTIFICATION. A reasonable man always avoids commiting crime. The only other time where a RM would foresee the unlawful consequence but not take stepts to guard against it is if the risk of its materialisation was very small (where the foreseen possibility is far-fetched. Eg. Where a fireman drives down a busy street not stopping at red traffic lights in order to save hundreds of people stuck in a building. A RM would foresee an accident as a result but the risk is so small and so ouweighed by the social utility in saving the people in the burning buiding that a RM would probably proceed reckless as the possibility of an accident materialising.

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Criminal Law Fault Culpa Notes

Course: Criminal law (LAWS 2014)

941 Documents
Students shared 941 documents in this course

University: University of the Witwatersrand, Johannesburg

Was this document helpful?
1
MS STAROSTA’S CLASS
CRIMINAL LAW
LAWS2014A/3040A/3053A
FAULT – CULPA
NEGLIGENCE
________________________________________________________________________
GENERAL
`All common law crimes require dolus with the exception of culpable homicide and
contempt of court.
`On the other hand, there are a number of statutory crimes which require negligence
(culpa) as the requisite fault element.
`Negligence is the failure to adhere to a prescribed standard required by law, that is,
the accused fails to act as a reasonable man would have acted in the circumstances.
`Negligence thus, connotates the falling short of a reasonable man standard which
is determined partly by what a reasonable man would have done in the circumstances
and partly by what law requires reasonable people to have done in the circumstances.
`Unlike the test for intention which is subjective, the test for negligence is objective.
`We do not ask what the Accused subjectively foresaw, we ask what a reasonable person
would have foreseen and done in the circumstances.
DISTINCTION BETWEEN DOLUS AND CULPA
`Culpa is a lessor form of fault than dolus.
`This does not however mean that culpa will always attract a lighter sentence than dolus
as there may be mitigating factors used in sentencing when dolus is present and
aggrevating factors when culpa is present (for instance where the Acc fell far short of
the reasonable man standard).
CONCEPT OF CONSCIOUS NEGLIGENCE
`We mentioned this when discussing DE.
`It is possible that an Acc is negligent (in that he fails to take the steps that a
reasonable person would have to guard against harm) and at the same time, he
subjectively foresees a remote possibility of death.
`It is proposed that where only a faint or remote possibility of death is foreseen,
culpa exists and not dolus. – This is called conscious negligence.
R v Hedley ‘58
`A fired a shot at a bird which was just emerging from beneath the surface of water in
a dam (presumably the bird was hunting fish).
`The bullet missed the bird, struck the water and ricocheted off the water killing a girl
a considerable distance away on the other side of the dam near some huts.

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