S v Tabethe & DPP v Tabethe (Punishment Theories → Restorative Justice)
- Tabethe raped his life companion’s daughter
- Court found that this was a good case for restorative justice.
- LQ; Could restorative justice be fair when used in serious cases of rape, such as this?
- Was granted restorative justice, until APPEALED and previous punishments are set aside
and replaced with 10 years imprisonment.
S v Grobler (Conduct → Actio Libera in Causa)
- Lift operator of mine
- Very tired, did not sleep much the previous night.
- Came to work anyway.
- Fell asleep at the controls.
- Did not stop lift in time, so it crashed into the roof.
- Many people died.
- Court: Guilty, Actio Libera in Causa
S v van Rensburg ( Conduct →Sleep)
- Fell asleep behind wheel (after blood tests at doctor; low blood sugar, couldn’t eat
before) – crashed into someone else – doesn’t remember anything – wasn’t warned by
doctor
- Succeeded – medical evidence.
Possible Question – Compare Grobler to van Rensburg
Principles of Legality
- S v Solomons 1973 (Ius Acceptum)
- Masiya v Director of Public Prosecutions 2007(CC) (Ius Praevium)
o Raped someone anally.
o Common law definition of rape still applied.
o Thus he was acquitted.
o Law was changed → definition of rape changed.
- S v Francis en ‘n ander 1994 – escape from rehab centre
▪ Prohibited but not criminalised; goes against principle of
legality to convict
▪ Just because it is a prohibited does not make it a crime
- Veldman v DPP (Nulla Poena Sine Lege, Ius Acceptum, Ius Praevium)
o Accused had already plead
o Law changed
o Could accused be sentenced in terms of the increased jurisdiction?
o The court held it could not, observing that, once an accused has pleaded, the
constitutionally-enshrined principle of legality requires that the sentencing
jurisdiction of a court could not be varied to the detriment of the accused, even
where it was clear that the increased sentence was a permissible sentence for
the charge involved.
,S v Goliath (Conduct → Vis Compulsiva/ Relative force)
- Person was going to kill accused’s family if he did not help with killing another man –
involuntary conduct? You still have a choice albeit a tough one; defence if life v life if not
really justified (see: unlawfulness)
- Not being forced = absolute force not a defence in RSA law
S v Erwin 1974 (Conduct – Reflex actions)
- Man overtaking car but bee flies in window at this time
- He instinctively moved head and banged against right side of car; glasses then broke
- He took his hands off wheel instinctively to protect face; therefore crashed into other
vehicle
- Charged with negligent driving; claimed sane automatism
- Court looked at his evidence (removing of hands) and said he had thought process, so
could have thought about crashing as well – conduct was voluntary
S v Smit 1963 (Conduct – Reflex actions)
- S driving, 2 passengers on back of bakkie
- 1 passenger knocks on bakkie window – turns around, loses control of car – kills knocker
(Pieterson)
- Defence: sane automatism
- Court: Smit had thought process - did not succeed either
S v Arnold 1985 (Provocation/ emotional stress)
- Arnold married to younger lady: infatuated
- She hated his son + mother-in-law – couple often fought over these issues
- During a fight, Arnold fires a short and kills his wife
- Court: she provokes him + he never lied to the police + fully co-operated + medical
evidence of his state of mind = conduct was involuntary
- Succeeded – did not perform act consciously
- Swayed by his love + honesty + background
S v Eadie 2002 (Provocation/ emotional stress)
→ May have changed the position
- Road rage – Killed another motorist
- SCA effectively restricted provocation as a defence
- Ripple effect on domestic violence + intoxication related situations
R v Miller 1983 (Conduct - Omissio per commisionem)
- Homeless person slept in a house
- Mattress caught on fire from cigarette
- Failed to put it out - house set on fire
- Court: liable for arson
,S v Fernandez 1966 (Conduct - Control of a potentially dangerous thing or animal)
- Owner of a small shop had
- a pet baboon
- Baboon escaped from the cage but owner managed to coax the baboon back into its
cage
- Owner failed to fix the hole through which the baboon initially escaped
- Baboon escaped again and attacked and killed a baby
- Court: culpable homicide – had a legal duty to prevent harm: did not take measures to
ensure the baboon would not harm another person.
S v B and Another 1994 (Conduct – Protective relationship)
- 2-year-old boy assaulted by mother’s boyfriend continually – eventually killed
- Mother: failed to protect her child – court looked at the injuries sustained (burns,
broken bones etc.) which proved she did know of the abuse
- Court: mother foresaw the possibility that child might be harmed and did not protect
child – convicted assault
- Boyfriend: murder
*Parents will also be liable if child starves to death
Minister van polisie v Ewels (Public office or quasi-public office/ Special relationship)
- Ewels was assaulted by off-duty police officer at station in front of other officers that did
nothing - minister to be held liable as policemen have a legal duty to protect citizens
- Point of Departure: no liability for omissions
- But are cases for exceptions: where there is a legal duty to act positively arising from a
protective relationship
- Must prevent crime / protect community; exercise control over police station (crime of
assault)
Minister of law and order v Kadir (UNSUCSESSFUL Public office or quasi-public office/ Special
relationship)
- Kadir is driving and a bundle of clothes falls off the back of the car in front of him: cause
accident
- Other car comes to collect the clothes and drives off
- Police didn’t take any details of car with clothes and now Kadir cannot claim from Road
Accident Fund
- SCA: no legal duty
- Duty of police = to maintain law and order; not to assist people to obtain evidence for
civil claims (delict)
, Carmichele v Minister of safety and security (Public office or quasi-public office/ Special
relationship)
- Coetzee out on bail even though very dangerous, attempted rape, murder
- Coetzee assaulted Carmichele in her own home
- Carmichele: police and prosecutor had responsibility to keep people like her safe –
police should have told court about his previous actions, given magistrate the
information. They could have prevented the crime.
- Court: agree with Carmichele
- Constitutionally: inflicts on potential victims right to freedom from violence, right to life,
right to human dignity
- Police + prosecutor: duty to oppose bail or inform court about all the relevant facts (that
he was dangerous)
- State has a duty to protect women and children
- Carmichele: class of potential victims
- She was entitled to claim damages
Minister of safety and security v Hamilton (Public office or quasi-public office/ Special
relationship)
- Mrs Arnold had psychological problems + an alcoholic
- She applied for a firearm licence and received it
- Hamilton + Arnold argument in parking lot and Arnold shot Hamilton – now paraplegic
- Sue Minister but no evidence obtained firearm illegally but the police did not stop her
from obtaining it – should have done an investigation and declined her application
- Court: a legal duty to prevent
Minister of Police v Skosana 1977 (Causation – Conditio cum qua non)
- Drunk driver arrested and beaten by police – left in police cell – began complaining
about stomach pains, doctor was only called after much delay – died a few hours later,
could have stayed alive if he had received medical assistance
- Legal question: on balance of probabilities, would reasonable conduct have prevented
his death?
- Majority of the judges found that earlier medical treatment could have saved his life
→ Significant connection between negligent conduct (slow/delayed) and death of
Skosana
→ Constables failed to act reasonably
*See full case for all 3 judgements
- Tabethe raped his life companion’s daughter
- Court found that this was a good case for restorative justice.
- LQ; Could restorative justice be fair when used in serious cases of rape, such as this?
- Was granted restorative justice, until APPEALED and previous punishments are set aside
and replaced with 10 years imprisonment.
S v Grobler (Conduct → Actio Libera in Causa)
- Lift operator of mine
- Very tired, did not sleep much the previous night.
- Came to work anyway.
- Fell asleep at the controls.
- Did not stop lift in time, so it crashed into the roof.
- Many people died.
- Court: Guilty, Actio Libera in Causa
S v van Rensburg ( Conduct →Sleep)
- Fell asleep behind wheel (after blood tests at doctor; low blood sugar, couldn’t eat
before) – crashed into someone else – doesn’t remember anything – wasn’t warned by
doctor
- Succeeded – medical evidence.
Possible Question – Compare Grobler to van Rensburg
Principles of Legality
- S v Solomons 1973 (Ius Acceptum)
- Masiya v Director of Public Prosecutions 2007(CC) (Ius Praevium)
o Raped someone anally.
o Common law definition of rape still applied.
o Thus he was acquitted.
o Law was changed → definition of rape changed.
- S v Francis en ‘n ander 1994 – escape from rehab centre
▪ Prohibited but not criminalised; goes against principle of
legality to convict
▪ Just because it is a prohibited does not make it a crime
- Veldman v DPP (Nulla Poena Sine Lege, Ius Acceptum, Ius Praevium)
o Accused had already plead
o Law changed
o Could accused be sentenced in terms of the increased jurisdiction?
o The court held it could not, observing that, once an accused has pleaded, the
constitutionally-enshrined principle of legality requires that the sentencing
jurisdiction of a court could not be varied to the detriment of the accused, even
where it was clear that the increased sentence was a permissible sentence for
the charge involved.
,S v Goliath (Conduct → Vis Compulsiva/ Relative force)
- Person was going to kill accused’s family if he did not help with killing another man –
involuntary conduct? You still have a choice albeit a tough one; defence if life v life if not
really justified (see: unlawfulness)
- Not being forced = absolute force not a defence in RSA law
S v Erwin 1974 (Conduct – Reflex actions)
- Man overtaking car but bee flies in window at this time
- He instinctively moved head and banged against right side of car; glasses then broke
- He took his hands off wheel instinctively to protect face; therefore crashed into other
vehicle
- Charged with negligent driving; claimed sane automatism
- Court looked at his evidence (removing of hands) and said he had thought process, so
could have thought about crashing as well – conduct was voluntary
S v Smit 1963 (Conduct – Reflex actions)
- S driving, 2 passengers on back of bakkie
- 1 passenger knocks on bakkie window – turns around, loses control of car – kills knocker
(Pieterson)
- Defence: sane automatism
- Court: Smit had thought process - did not succeed either
S v Arnold 1985 (Provocation/ emotional stress)
- Arnold married to younger lady: infatuated
- She hated his son + mother-in-law – couple often fought over these issues
- During a fight, Arnold fires a short and kills his wife
- Court: she provokes him + he never lied to the police + fully co-operated + medical
evidence of his state of mind = conduct was involuntary
- Succeeded – did not perform act consciously
- Swayed by his love + honesty + background
S v Eadie 2002 (Provocation/ emotional stress)
→ May have changed the position
- Road rage – Killed another motorist
- SCA effectively restricted provocation as a defence
- Ripple effect on domestic violence + intoxication related situations
R v Miller 1983 (Conduct - Omissio per commisionem)
- Homeless person slept in a house
- Mattress caught on fire from cigarette
- Failed to put it out - house set on fire
- Court: liable for arson
,S v Fernandez 1966 (Conduct - Control of a potentially dangerous thing or animal)
- Owner of a small shop had
- a pet baboon
- Baboon escaped from the cage but owner managed to coax the baboon back into its
cage
- Owner failed to fix the hole through which the baboon initially escaped
- Baboon escaped again and attacked and killed a baby
- Court: culpable homicide – had a legal duty to prevent harm: did not take measures to
ensure the baboon would not harm another person.
S v B and Another 1994 (Conduct – Protective relationship)
- 2-year-old boy assaulted by mother’s boyfriend continually – eventually killed
- Mother: failed to protect her child – court looked at the injuries sustained (burns,
broken bones etc.) which proved she did know of the abuse
- Court: mother foresaw the possibility that child might be harmed and did not protect
child – convicted assault
- Boyfriend: murder
*Parents will also be liable if child starves to death
Minister van polisie v Ewels (Public office or quasi-public office/ Special relationship)
- Ewels was assaulted by off-duty police officer at station in front of other officers that did
nothing - minister to be held liable as policemen have a legal duty to protect citizens
- Point of Departure: no liability for omissions
- But are cases for exceptions: where there is a legal duty to act positively arising from a
protective relationship
- Must prevent crime / protect community; exercise control over police station (crime of
assault)
Minister of law and order v Kadir (UNSUCSESSFUL Public office or quasi-public office/ Special
relationship)
- Kadir is driving and a bundle of clothes falls off the back of the car in front of him: cause
accident
- Other car comes to collect the clothes and drives off
- Police didn’t take any details of car with clothes and now Kadir cannot claim from Road
Accident Fund
- SCA: no legal duty
- Duty of police = to maintain law and order; not to assist people to obtain evidence for
civil claims (delict)
, Carmichele v Minister of safety and security (Public office or quasi-public office/ Special
relationship)
- Coetzee out on bail even though very dangerous, attempted rape, murder
- Coetzee assaulted Carmichele in her own home
- Carmichele: police and prosecutor had responsibility to keep people like her safe –
police should have told court about his previous actions, given magistrate the
information. They could have prevented the crime.
- Court: agree with Carmichele
- Constitutionally: inflicts on potential victims right to freedom from violence, right to life,
right to human dignity
- Police + prosecutor: duty to oppose bail or inform court about all the relevant facts (that
he was dangerous)
- State has a duty to protect women and children
- Carmichele: class of potential victims
- She was entitled to claim damages
Minister of safety and security v Hamilton (Public office or quasi-public office/ Special
relationship)
- Mrs Arnold had psychological problems + an alcoholic
- She applied for a firearm licence and received it
- Hamilton + Arnold argument in parking lot and Arnold shot Hamilton – now paraplegic
- Sue Minister but no evidence obtained firearm illegally but the police did not stop her
from obtaining it – should have done an investigation and declined her application
- Court: a legal duty to prevent
Minister of Police v Skosana 1977 (Causation – Conditio cum qua non)
- Drunk driver arrested and beaten by police – left in police cell – began complaining
about stomach pains, doctor was only called after much delay – died a few hours later,
could have stayed alive if he had received medical assistance
- Legal question: on balance of probabilities, would reasonable conduct have prevented
his death?
- Majority of the judges found that earlier medical treatment could have saved his life
→ Significant connection between negligent conduct (slow/delayed) and death of
Skosana
→ Constables failed to act reasonably
*See full case for all 3 judgements
