Study Unit 3
The Act
The Act
Act – an act or omission, omission being the failure to act. Generally the punishment of omission is
more the exception than the rule.
Thoughts are not punishable.
Act must be human act.
Act must be voluntary
Conduct is punishable if X is capable of subjecting his bodily movements to his will or
intellect – not be confused with concept of willed act.
Factors that exclude voluntariness:
o Absolute force – force that is uncontrollable which affects one in acting. Excludes
ability to subject bodily movement. E.g. Z who is bigger and stronger then X, forces X
to stab Y while holding X’s hand.
o Natural force – natural force that is uncontrollable which affects one in acting
o Automatism – “mechanical” behaviour. E.g. sneezing, involuntary muscular
movements, hypnotised, epileptic fits etc.
Sane – momentary act without voluntarily acting
Insane – mental illness
The above differences on automatism have 2 differences:
Onus of proof – Sane rests on state, Insane rests upon the accused. NB
Antecedent liability can be held criminally liable for crimes that require
negligence.
Outcome of case – Sane leaves court free, Insane leaves court with loosing
freedom to psychiatric hospital.
Omissions
Legal duty to act positively since legal convictions of the community require X to act positively.
Legal duty in specific instances:
1. A statute may impose duty upon someone to act positively.
2. By virtue of provisions of the common law.
3. May arise from agreement. Pitwood case. Railway close gate.
4. Where a person accepts responsibility for the control of a dangerous or potentially
dangerous object. Fernandez case. Monkey bites child, no cage, child dies, culpable
homicide.
5. Where a person stands in protective relationship with someone. B case. Assault on child by
new man, mother knew and did nothing, guilty of assault too.
6. Previous positive act. Omissio per commissionem
7. By virtue of being incumbent in a certain office. Minister van polisie v ewels case. A police
man who sees somebody being assaulted has duty to come to assistance. Gaba case.
“Godfather”, policeman charged with obstruct court of justice.
8. Order of court.
Defence of impossibility
1. The legal provision that is infringed must place positive duty on X –
2. It must be positively impossible for X to comply with the relevant legal provision
3. X must not be responsible for the situation of impossibility
The Act
The Act
Act – an act or omission, omission being the failure to act. Generally the punishment of omission is
more the exception than the rule.
Thoughts are not punishable.
Act must be human act.
Act must be voluntary
Conduct is punishable if X is capable of subjecting his bodily movements to his will or
intellect – not be confused with concept of willed act.
Factors that exclude voluntariness:
o Absolute force – force that is uncontrollable which affects one in acting. Excludes
ability to subject bodily movement. E.g. Z who is bigger and stronger then X, forces X
to stab Y while holding X’s hand.
o Natural force – natural force that is uncontrollable which affects one in acting
o Automatism – “mechanical” behaviour. E.g. sneezing, involuntary muscular
movements, hypnotised, epileptic fits etc.
Sane – momentary act without voluntarily acting
Insane – mental illness
The above differences on automatism have 2 differences:
Onus of proof – Sane rests on state, Insane rests upon the accused. NB
Antecedent liability can be held criminally liable for crimes that require
negligence.
Outcome of case – Sane leaves court free, Insane leaves court with loosing
freedom to psychiatric hospital.
Omissions
Legal duty to act positively since legal convictions of the community require X to act positively.
Legal duty in specific instances:
1. A statute may impose duty upon someone to act positively.
2. By virtue of provisions of the common law.
3. May arise from agreement. Pitwood case. Railway close gate.
4. Where a person accepts responsibility for the control of a dangerous or potentially
dangerous object. Fernandez case. Monkey bites child, no cage, child dies, culpable
homicide.
5. Where a person stands in protective relationship with someone. B case. Assault on child by
new man, mother knew and did nothing, guilty of assault too.
6. Previous positive act. Omissio per commissionem
7. By virtue of being incumbent in a certain office. Minister van polisie v ewels case. A police
man who sees somebody being assaulted has duty to come to assistance. Gaba case.
“Godfather”, policeman charged with obstruct court of justice.
8. Order of court.
Defence of impossibility
1. The legal provision that is infringed must place positive duty on X –
2. It must be positively impossible for X to comply with the relevant legal provision
3. X must not be responsible for the situation of impossibility
