Study Unit 7
Culpability and Criminal Capacity
Requirement of culpability in general
Mere fact that a person has committed an act that complies with definitional elements and is
unlawful is still not sufficient to render them criminally liable. X’s conduct must be accompanied by
culpability. Broadly speaking this means in the eyes of the law he can be reproached or blamed for
his conduct. This is the case if he committed the conduct in a blameworthy state of mind.
Culpability and unlawfulness
Whether culpability is present, need be asked only after unlawfulness has been established.
Unlawfulness of an act does not refer to the personal characteristics of the perpetrator.
When establishing culpability the picture changes. Focus shifts to perpetrator as an individual.
Question we ask is whether this particular person – considering his personal characteristic,
shortcomings, mental abilities gifts as well as knowledge – can be blamed for commission of his
conduct.
Grounds of justification refer only to defences that exclude unlawfulness of conduct. Defence
denotes any ground that excludes liability. Latin term mens rea is used to denote culpability.
Criminal capacity and forms of culpability
Before it can be said that X acted with culpability it must be clear that was endowed with criminal
capacity. Criminal capacity refers to person’s mental ability. Mere fact that X has criminal capacity is
not suffice to infer he acted with culpability. There need be something more: X acted either
intentionally or negligently, two forms of culpability.
Culpability = criminal capacity + intention or negligence
Principle of contemporaneity
Culpability and unlawful conduct must be contemporaneous. There must be culpability at the very
moment when unlawful conduct was committed. Masilela case – assault and strangle, believing his
dead, starts fire and disappeared with booty, X dies in fire. Court did not accept argument that there
were two separate acts. Court deemed X’s conduct amounted to “a single course of conduct”
Principle of contemporaneity is closely related to rule that mistaken belief concerning causal chain of
events usually does not exclude intention.
Criminal capacity
Refers to mental abilities or capacities that a person need have in order to act with culpability and to
incur criminal liability.
Definition:
A person is endowed with criminal capacity if he has the mental ability to
o Appreciate wrongfulness of conduct
o Act in accordance with such appreciation of conduct
Criminal capacity distinguished from intention
Question of intent or negligence arises only once established that X had criminal capacity.
Investigation into criminal capacity is concerned with his mental abilities, whereas enquiry into
intent or negligence of conduct is concerned presence or absence of certain attitude or state of
mind.
Culpability and Criminal Capacity
Requirement of culpability in general
Mere fact that a person has committed an act that complies with definitional elements and is
unlawful is still not sufficient to render them criminally liable. X’s conduct must be accompanied by
culpability. Broadly speaking this means in the eyes of the law he can be reproached or blamed for
his conduct. This is the case if he committed the conduct in a blameworthy state of mind.
Culpability and unlawfulness
Whether culpability is present, need be asked only after unlawfulness has been established.
Unlawfulness of an act does not refer to the personal characteristics of the perpetrator.
When establishing culpability the picture changes. Focus shifts to perpetrator as an individual.
Question we ask is whether this particular person – considering his personal characteristic,
shortcomings, mental abilities gifts as well as knowledge – can be blamed for commission of his
conduct.
Grounds of justification refer only to defences that exclude unlawfulness of conduct. Defence
denotes any ground that excludes liability. Latin term mens rea is used to denote culpability.
Criminal capacity and forms of culpability
Before it can be said that X acted with culpability it must be clear that was endowed with criminal
capacity. Criminal capacity refers to person’s mental ability. Mere fact that X has criminal capacity is
not suffice to infer he acted with culpability. There need be something more: X acted either
intentionally or negligently, two forms of culpability.
Culpability = criminal capacity + intention or negligence
Principle of contemporaneity
Culpability and unlawful conduct must be contemporaneous. There must be culpability at the very
moment when unlawful conduct was committed. Masilela case – assault and strangle, believing his
dead, starts fire and disappeared with booty, X dies in fire. Court did not accept argument that there
were two separate acts. Court deemed X’s conduct amounted to “a single course of conduct”
Principle of contemporaneity is closely related to rule that mistaken belief concerning causal chain of
events usually does not exclude intention.
Criminal capacity
Refers to mental abilities or capacities that a person need have in order to act with culpability and to
incur criminal liability.
Definition:
A person is endowed with criminal capacity if he has the mental ability to
o Appreciate wrongfulness of conduct
o Act in accordance with such appreciation of conduct
Criminal capacity distinguished from intention
Question of intent or negligence arises only once established that X had criminal capacity.
Investigation into criminal capacity is concerned with his mental abilities, whereas enquiry into
intent or negligence of conduct is concerned presence or absence of certain attitude or state of
mind.
