Criminal Law 171
Class notes & Case Summaries
Semester 1, Term 2
2020
This bundle has been compiled by JW Beukes. Copying any part of this bundle without
purchasing, or written permission from the author is a violation of copyright law and is
a punishable offence. Notes in this document have been compiled with reference to
the textbook Principles of Criminal Law, 5th edition by Johnathan Burchell.
,7 Causation
7.1 Background
- Does not apply to all crimes;
o Only consequence crimes which criminalises a prohibited consequence
caused by the accused’s conduct
o i.e. Result or effect is criminalised not conduct itself.
§ E.g. Murder or Culpable homicide
Consequence crimes:
- Consider the example: Push someone over cliff;
o Conduct: Applying force to someone’s back
§ Not crime
o Consequence: Person falls and dies
§ Crime
- Central Issue with Causation: Is there a link (nexis) between conduct and
the prohibited consequence?
o Is the link sufficiently close between conduct and consequence to
conclude that conduct is cause of unlawful consequence?
- To prove beyond reasonable doubt that causation is present:
o Prove factual causation and the limit that with legal causation.
o Prove that both Factual and Legal links are present.
Circumstance Crimes:
- Focus: On what accused did, not the consequences, therefore;
- Circumstance crimes criminalises a specific prohibited act not its possible
consequences
o E.g. Reckless/ negligent driving
- Must merely prove that the accused committed the act
7.2 Introduction: Theories of Causation
- Many authors differ in their opinions of the various tests
- The Conditio Sine Qua Non Test is especially contentious.
o SA courts have approved this test.
1
,7.3 Factual Causation
First step in determining if there is a close enough link to conduct and consequence.
How to determine factual link (nexis):
- Consider all facts.
o Based on scientific knowledge and natural experience
- Checking if factual causation is present: Conditio Sine Qua Non Test
o Snyman: Strictly not test; simply checking ex post facto (After the time)
o The “but for” test
§ Would consequence have happened but for conduct?
7.3.1 Conditio Sine Qua Non Test
When conduct takes form of positive act;
Would the consequence have happened if the accused had not committed the
act?
If the consequence only happened because of his/her conduct the test
has been passed and there is a factual cause of the consequence.
- Hypothetically eliminate conduct;
o If you cannot without consequence disappearing, there is a factual link.
- An act is a cause of a consequence if it cannot be notionally eliminated from
the sequence of events, without the consequence also disappearing.
When conduct takes form of Omission;
Use Conditio Cum Qua Non Test
- Hypothetically add conduct that must have been done.
o Check if consequence would have disappeared if correct conduct had
been done.
7.4 Legal Causation
Places policy limits to the extent of liability.
- Determines if there is a nexus between conduct and consequence based on
legal criteria.
o Legal criteria – policy considerations:
1. Reasonableness
2. Fairness
- Is established using different tests and theories
- Note: S v Mokgethi
o SCA held:
§ We should not regard one test as superior, all are equal
§ Van Heerden said to apply (broader approach) flexible approach
using tests as aids to guide.
2
, - Is there a sufficiently close connection between conduct and unlawful
consequence:
o Yes? Is reasonable and fair to hold accused accountable.
7.4.1 Individualisation Theories
- Out of many factors contributing to the outcome, these tests try to single out
most important/ decisive cause – that one cause is then the legal cause of the
prohibited consequence.
a) Proximate Cause Test
Identifies legal cause as: Cause closest in time to unlawful consequence.
b) Direct Cause
Legal cause is: The most direct cause. The most substantial cause
c) Causa Causans
Most decisive cause.
“Cause of causes”
- Problem is: Criteria used to decide which cause is most important are
arbitrary and based on coincidence. Also do not take into account that there
may be multiple acts that cause the consequence.
- These do help to narrow down the cause but due to arbitrariness and
vagueness, it is difficult to use in all situation.
7.4.2 Adequate Causation Test
- Preferred by Snyman
- An act is legal cause of situation if:
o According to human experience in the normal course of events the act
typically has the tendency to bring about the prohibited consequence.
- Is forward looking:
o Focus on what is typical or probable
o What one would expect to happen in a situation.
- Is also too vague:
o What factors should be considered when deciding if something is
probable/ typical?
- If it is normal consequence, there is legal causation
7.4.3 Novus Actus Interveniens Test
Novus Actus Interveniens – New intervening event.
- Burchell favours this
- Was there any abnormal intervening event?
o i.e. something unexpected happening that would break the chain of
causation between the accused conduct and the prohibited
consequence.
3
Class notes & Case Summaries
Semester 1, Term 2
2020
This bundle has been compiled by JW Beukes. Copying any part of this bundle without
purchasing, or written permission from the author is a violation of copyright law and is
a punishable offence. Notes in this document have been compiled with reference to
the textbook Principles of Criminal Law, 5th edition by Johnathan Burchell.
,7 Causation
7.1 Background
- Does not apply to all crimes;
o Only consequence crimes which criminalises a prohibited consequence
caused by the accused’s conduct
o i.e. Result or effect is criminalised not conduct itself.
§ E.g. Murder or Culpable homicide
Consequence crimes:
- Consider the example: Push someone over cliff;
o Conduct: Applying force to someone’s back
§ Not crime
o Consequence: Person falls and dies
§ Crime
- Central Issue with Causation: Is there a link (nexis) between conduct and
the prohibited consequence?
o Is the link sufficiently close between conduct and consequence to
conclude that conduct is cause of unlawful consequence?
- To prove beyond reasonable doubt that causation is present:
o Prove factual causation and the limit that with legal causation.
o Prove that both Factual and Legal links are present.
Circumstance Crimes:
- Focus: On what accused did, not the consequences, therefore;
- Circumstance crimes criminalises a specific prohibited act not its possible
consequences
o E.g. Reckless/ negligent driving
- Must merely prove that the accused committed the act
7.2 Introduction: Theories of Causation
- Many authors differ in their opinions of the various tests
- The Conditio Sine Qua Non Test is especially contentious.
o SA courts have approved this test.
1
,7.3 Factual Causation
First step in determining if there is a close enough link to conduct and consequence.
How to determine factual link (nexis):
- Consider all facts.
o Based on scientific knowledge and natural experience
- Checking if factual causation is present: Conditio Sine Qua Non Test
o Snyman: Strictly not test; simply checking ex post facto (After the time)
o The “but for” test
§ Would consequence have happened but for conduct?
7.3.1 Conditio Sine Qua Non Test
When conduct takes form of positive act;
Would the consequence have happened if the accused had not committed the
act?
If the consequence only happened because of his/her conduct the test
has been passed and there is a factual cause of the consequence.
- Hypothetically eliminate conduct;
o If you cannot without consequence disappearing, there is a factual link.
- An act is a cause of a consequence if it cannot be notionally eliminated from
the sequence of events, without the consequence also disappearing.
When conduct takes form of Omission;
Use Conditio Cum Qua Non Test
- Hypothetically add conduct that must have been done.
o Check if consequence would have disappeared if correct conduct had
been done.
7.4 Legal Causation
Places policy limits to the extent of liability.
- Determines if there is a nexus between conduct and consequence based on
legal criteria.
o Legal criteria – policy considerations:
1. Reasonableness
2. Fairness
- Is established using different tests and theories
- Note: S v Mokgethi
o SCA held:
§ We should not regard one test as superior, all are equal
§ Van Heerden said to apply (broader approach) flexible approach
using tests as aids to guide.
2
, - Is there a sufficiently close connection between conduct and unlawful
consequence:
o Yes? Is reasonable and fair to hold accused accountable.
7.4.1 Individualisation Theories
- Out of many factors contributing to the outcome, these tests try to single out
most important/ decisive cause – that one cause is then the legal cause of the
prohibited consequence.
a) Proximate Cause Test
Identifies legal cause as: Cause closest in time to unlawful consequence.
b) Direct Cause
Legal cause is: The most direct cause. The most substantial cause
c) Causa Causans
Most decisive cause.
“Cause of causes”
- Problem is: Criteria used to decide which cause is most important are
arbitrary and based on coincidence. Also do not take into account that there
may be multiple acts that cause the consequence.
- These do help to narrow down the cause but due to arbitrariness and
vagueness, it is difficult to use in all situation.
7.4.2 Adequate Causation Test
- Preferred by Snyman
- An act is legal cause of situation if:
o According to human experience in the normal course of events the act
typically has the tendency to bring about the prohibited consequence.
- Is forward looking:
o Focus on what is typical or probable
o What one would expect to happen in a situation.
- Is also too vague:
o What factors should be considered when deciding if something is
probable/ typical?
- If it is normal consequence, there is legal causation
7.4.3 Novus Actus Interveniens Test
Novus Actus Interveniens – New intervening event.
- Burchell favours this
- Was there any abnormal intervening event?
o i.e. something unexpected happening that would break the chain of
causation between the accused conduct and the prohibited
consequence.
3
