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Non-pathological incapacity : reassessing the defence of provocation and emotional stress in South Africa.

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The relationship between provocation and the criminal law can be categorised as a necessary but troubled union. Historically, anger was considered as a ground mitigating punishment in Roman law with the law distinguishing between crimes that were committed on impulse and those that were committed with premeditation. This attitude continued into the Middle Ages; however, anger was considered as a complete defence in certain circumstances. The attitude of the Roman-Dutch writers was that anger could only be regarded as a factor mitigating punishment in cases where the anger was justified and was not a ground which excluded capacity. . Since 17th century English law, provocation has been recognised as having an impact on the criminal liability of the accused who killed while ―passions were aroused‖. Serious crimes such as murder, committed while in a state of anger brought on by serious provocation were considered less serious than those commited in ―cold blood‖ or with premeditation. Historically, the basis for this leniency is rooted partly in the need for the concession to human frailty in cases where provocation leads to a loss of self-control. This basis for a defence of provocation continues in jurisdictions such as England and Canada. However, despite this leniency, the general approach in jurisdictions such as England and Canada is that a provoked act cannot excuse the agent from criminal liability completely, but only partially, as fundamentally, individuals are expected to exercise control over their emotions and their actions. Achieving this balance between the recognition of human frailty and enforcing a standard of acceptable behaviour in society, is where the controversy in jurisdictions such as England and Canada emerges. On this fundamental level, the provocation defence emerges as one of the most contentious defences in modern times and has remained that way for many years in jurisdictions such as South Africa, England and Canada. The dilemma in England and Canada centres around ensuring that there is room for a concession to human infirmity on the one hand, while simultaneously ensuring that unacceptable standards of behaviour are not condoned by the law. An important basic principle in most modern v legal systems is that acts of vengeance, which are argued to be the main motivation behind retaliation to provocation, should not only be discouraged but punished. It is due to these considerations of policy that the provocation defence in England and Canada exists only as a partial defence to murder. This approach is in stark contrast to the approach in South African law, where the law during the past quarter of a century, has gone far enough to allow provocation and emotional stress to operate as a complete defence. This dynamic approach is based on the psychological or principle-based approach to criminal liability which is based on the legal principle that unless an individual possesses the capacity or the fair opportunity to regulate his behaviour in accordance with the requirements of the law, the consequences of his behaviour should therefore not apply. The formulation of this innovative approach has been the source of debate which has focused on the purely subjective test for criminal capacity. The defence of nonpathological incapacity due to provocation and emotional stress has occupied an important role in South African criminal law as it accommodates those individuals who kill out of anger, emotional stress, fear, shock and emotional collapse provided that the accused did not possess criminal capacity at the time of the killing. The principle-based approach to provocation and emotional stress, though logical and in line with interests of justice and fairness has been under scrutiny since its development with commentators arguing that the defence of non-pathological incapacity due to provocation and emotional stress is inherently problematic and should, primarily on grounds of policy, be limited to prevent the ―hot-head‖ from being acquitted. This point has been argued by commentators in South Africa who believe that South African law should align itself with Anglo-American systems who take a more stringent stance in relation to provocation. It is with these arguments in mind that the notorious leading case of Eadie is assessed. It was hoped that the case of Eadie would provide much-needed clarity and offer a solution to the problem of perceived facile acquittals. It is submitted that the Eadie judgment failed in both respects. The study assesses this judgment and the reasons for its deficiencies. At present, the defence of of non-pathological incapacity due to vi provocation and emotional stress is in a state of limbo as confusion and controversy dominate. The cause of this disarray has emanated from the notorious landmark judgment by the Supreme Court of Appeal in Eadie. The Eadie judgment has brought about drastic and far-reaching repercussions to the criminal law to the extent that the defence of non-pathological incapacity due to provocation and emotional stress may have been abolished. The judgment itself has had varied interpretations with some academics welcoming its pronouncements, while others have being critical of certain aspects. This study considers the various interpretations and opinions put forth by academic commentators of the Eadie judgment in order to assess the precise significance of the exact import of the Eadie judgement and whether the changes made in this controversial case are warranted. Furthermore, this study evaluates and critically assesses the basis and justification for the defence in South African criminal law. In achieving this aim, the landmark judgment of Eadie is assessed to determine the extent to which the judgment goes in revising the traditional approach of the courts to provocation and emotional stress. In achieving the goal of this inquiry, which is to re-assess the defence of nonpathological incapacity due to provocation and emotional stress, the development of this defence was traced in South African law to determine if a coherent rationale exists underpinning the defence. The most important objective of this study is thus to assess whether the law governing the defence of non-pathological incapacity due to emotional stress and provocation in South Africa is in need of reform in light of the controversy and criticisms attacking the inherent nature of this defence. Furthermore, a comparative analysis is conducted with the respective provisions governing the provocation defence in Canadian law as well as English law, which is one of the common-law parent systems of South African law. It is important to gain an understanding of the basis of the defences in each jurisdiction; therefore, the origins of the defence of provocation in each jurisdiction are traced. The comparative analysis seeks to determine whether the approach to provocation in these jurisdictions is preferred to the principled approach in South African law and vii whether South Africa should place a greater emphasis on policy considerations in its treatment of provocation. Should South African law follow England and Canada by limiting the defence to a partial one the critical analysis of the different approaches will aid in identifying the pitfalls inherent in adopting aspects of these alternative models. The most important objective of this study is thus to assess whether the law governing the defence of non-pathological incapacity due to emotional stress and provocation in South Africa is in need of reform. In tracing the development of the law in South Africa, a historical survey of South African law and the development the defence of non-pathological incapacity due to provocation and emotional stress reveals somewhat of a turbulent past. Due to the differing influence of different parent systems of law, namely Roman and Roman-Dutch on the one hand and English law on the other, South African law took time to formulate its own unique approach to provocation. Emotions such as anger were historically never considered a complete defence to a killing in South African law. From this standpoint, the law moved on from considering the effect of provocation on criminal intention which was objectively assessed. Ultimately, the law progressed to a stage where intention is assessed subjectively as the focus fell on the state of mind of the accused. These developments eventually led to the re-assessment of the approach to provocation. The Report of the Commission of Inquiry into the Responsibility of Mentally Deranged Persons and Related Matters, popularly known as the Rumpff Commission Report was highly influential in popularising the notion of criminal capacity which was subjected to investigation by the Commission. The recommendations of the Commission gave rise to s 78(1) of the Criminal Procedure Act of 1977 which governs mental illness. However, the test formulated was extended to encompass non-pathological incapacity. The Rumpff Commission Report identified two essential components of criminal capacity that is cognitive and conative capacity. The concept of self-control was defined in the Rumpff Commission Report. The popularization of this notion of criminal capacity eventually changed the landscape of how provocation and emotional stress is treated today. The emergence of the doctrine viii ―toerekeningsvatbaarheid‖ or criminal capacity marked the broadening of the defence which began towards the latter part of the twentieth century when it was accepted that factors such as intoxication, emotional stress and provocation could in circumstances impair criminal capacity. These factors are not the cause of a mental defect, thus the notion of non-pathological incapacity was developed. The courts recognised that criminal incapacity could result from non-pathological causes and the defence of nonpathological incapacity based on provocation and emotional stress emerged. Notably, the Rumpff Commission identified a third category, that of affective functions, which govern an individual‘s feelings and emotions. Provocation and emotional stress are categorised as affective functions, the Rumpff Commission cautioned against allowing affective functions excluding criminal liability in cases where volitional control and insight were present. Despite this warning South African law has allowed affective functions to impinge upon the inquiry into criminal capacity where cognitive or conative functions are affected. The case of Laubscher set out the classic two-stage test for the defence of nonpathological incapacity, which is: (1) the ability to distinguish between the wrongfulness or otherwise of his conduct, (2) the capacity to act in accordance with such an appreciation. The Laubscher case provided a theoretical framework for the defence and stated that in terms of legal principle, non-pathological incapacity could lead to an acquittal; the defence of non-pathological incapacity gained an autonomous independent existence from the defence of pathological incapacity. The court emphasised that in order for an accused to be criminally accountable, the accused‘s mental faculites must be such that he is legally to blame for his conduct. The law distinguishes between conduct which is uncontrolled and that which is uncontrollable; it is uncontrolled actions which attracts criminal liability as the conduct is blameworthy. In the last two decades, the law‘s treatment of provocation and emotional stress has undergone major development with the defence of non-pathological incapacity due to provocation and emotional stress becoming a legitimate, fully-fledged defence. However, a controversial aspect of the provocation defence in South African law is the fact that criminal capacity is completely subjectively assessed. ix There have been certain contentious acquittals in cases such as Arnold, Moses and Nursingh which further fuelled debate on the acceptability of a defence based on provocation and emotional stress and highlighted the risk of facile acquittals. However, the acquittals in these cases unearthed problems relating to application of principle rather than the principle itself. In each case the presence of a series of goal-directed acts on the part of the accused indicated the presence of conative capacity, volitional control and insight on the part of both accused were present therefore indicating that capacity was not lacking. It is submitted that these cases were wrongly decided which consequently brought the defence of non-pathological incapacity due to provocation and emotional stress into disrepute. However, it is clear that the acquittals in these cases were a direct result of failure of the courts to properly apply the fundamentals of the defence to the facts. A significant feature of Nursingh is that the prosection did not lead expert testimony to rebut the expert evidence led by the defence. In Arnold, the State did not lead expert psychiatric evidence either in support of its case or challenge the opinions of the evidence led by the defence witness. This may have created an unbalanced view for the court. In an attempt to bring clarity to this area of the law and to quell public outrage arising from the acquittals in Arnold, Nursingh and Moses, the court in Eadie effected fundamental changes in the form of a policy brake to the principles underpinning the defence of non-pathological incapacity, which, in a drastic turn of events, has led to uncertainty regarding whether the defence of non-pathological incapacity still exists. There are two major difficulties arising from the Eadie judgment. First, there is undoubtedly the court‘s conflation of the defence of non-pathological incapacity with the defence of sane automatism; the ramifications of this conflation are tremendous and far-reaching. It is submitted, with respect, that the court in Eadie has demonstrated a failure to understand the distinct attributes and purpose of both defences of nonpathological incapacity and the defence of sane automatism. In terms of legal principle, there is a distinct difference between making a decision and having the ability to execute the decision. A person may be capable of voluntary conduct but may lack the x ability to set goals and may not have the ability to pursue these goals or to resist impulses to act contrary to what his insights tell him is right and wrong. In addition, the subjective test for capacity is substituted by the objective standard in the form of the test for sane automatism. The result is that the test for voluntariness occurs twice, firstly to determine if the accused acted voluntarily, and secondly once cognitive capacity is determined, in lieu of the test for conative capacity. This new development results in unnecessary duplication and complication. This amounts to the integration of a totally different defence, sane automatism, into the defence of non-pathological incapacity. Hence the test for capacity is defeated and thus becomes redundant. The conflation of the two defences creates difficulties not only in application, but the presence of automatism also erodes the test for capacity; there is a clear misunderstanding since the lack of capacity does not necessarily mean voluntary conduct is not present. The rejection of the difference between the test to determine voluntariness and the test for conative capacity will lead to the basic concepts of criminal liability losing their significance. Furthermore, the negation of the existence of the defence is detrimental to the criminal law system as it results in the partial elimination of the element of criminal capacity. It is submitted that the defence serves an important need in society and erosion of the defence is not in the interests of justice as it deprives individuals such as the battered woman of a defence; it is submitted that victims of abuse who kill their abusers stand a greater chance of succeeding when pleading non-pathological incapacity due to provocation and emotional stress. The second major problem with the Eadie judgment relates to the introduction of an objective test into the inquiry for criminal capacity. There have been proposals by academics to bring South African criminal law in line with other jurisdictions in AngloAmerica by incorporating an objective test into the defence, mainly to prevent abuse of the defence. However, it is submitted that this study has revealed that the incorporation of an objective test is not only unnecessary, but will be detrimental to the proper functioning of the defence, as there are clear problems concerning the application of an objective standard in the form of a reasonable or ordinary person. xi This conclusion can be deduced after analysing the results of the comparative analysis. Jurisdictions such as Canada and England have a strong bias for the use of an objective test which is considered to be an essential safeguard within the defence. The model of the reasonable man or ordinary person is favoured to determine if the reasonable man would have lost control in the same way as the accused. There is difficulty in deciding what attributes to assign to the fictional reasonable/ordinary person. This has led to inconsistent judgments and confusion in both England and Canada. The objective test is arguably one of the most problematic aspects of the provocation defence in England and Canada. There is a common problem of interpretation and application of the objective test. The difficulties associated with the objective test was one of the main problems identified with the now abolished provocation defence in terms of section 3 of the Homicide Act of 1957. Clearly, England and Canada have struggled with creating a balance in respect of the problem of accommodating human weakness while simultaneously ensuring that a person‘s right not to be killed by enraged individuals is protected. This delicate balance has seemed elusive and almost impossible to achieve. This indicates that fundamentally, that the rationale for the objective test is flawed and application of this rigid standard is practically unworkable since the courts are unable to effectively apply a stringent objective standard; a just and fair result cannot be obtained especially considering the nature and differing effects of provocation on different individual. This strongly indicates that the use of an objective test in trying to uncover what was going on in the mind of a human being is fundamentally illogical and application of this standard will be difficult to interpret and to apply to the facts, besides being extremely unfair and unjust. The use of ―reasonable man‖ or the ―ordinary man‖ to determine acceptable behaviour has been justifiably described as ―oxymoronic‖. In light of the introduction of an objective test in Eadie, it is submitted that the use of an objective test within the defence of provocation constitutes an unjust imposition of dominant cultural values. This criticism is key especially in light of the history and xii racial and socio-economic diversity in South Africa, furthermore, social and economic backgrounds may differ immensely from person to person and it is unfair and unjust to apply a uniform standard which cannot take cognisance such differences. Furthermore, it is correctly argued that an objective test subverts the principle upon which the concept of justification on which the criminal law is based, that individuals are autonomous moral agents who possess the right to freedom of action, therefore it is in light of this principle they are held responsible for their actions. Therefore, in terms of this argument the introduction of an objective test for conative capacity can be subjected to constitutional challenge for unjustifiably infringing on the right to dignity, granted by section 14 of the 1996 Constitution, furthermore, the right to freedom and security of the person in terms of section 12(1) (a) of the 1996 Constitution. The comparative analysis has revealed that there are other problems with the provocation defence in England and Canada. The restrictive nature of the defence in both jurisidictions have led to problems of gender discrimination by not encompassing persons such as the battered woman. The requirement of loss of self-control is a large part of the problem in both England and Canada since it is predicated on the angered states and is dependent on the ―eruptive‖ moment. This leaves little room for other causes of loss of self-control such as fear, thereby automatically excluding cases involving cumulative provocation from the ambit. A coherent rationale for the defence in England and Canada does not exist and there is debate regarding whether the defence is a justication or an exuse. This is the cause of the problem as in terms of policy, the actions of an accused can neither be partially justified or partially excused, since a degree of blameworthiness exists. Though the current defence in England has undergone reformation and now accommodates loss of self-control emanating from fear, the new provisions may still prove problematic, as fear and loss of self-control in English law may be incompatable as killing arising out of fear usually lacks the traditional eruptive moment. The notion of self-control in the respective defences is flawed and is the primary cause of gender discrimination against abused persons such as the battered woman in England and Canada. xiii It is argued that the defence of non-pathological incapacity due to provocation and emotional stress in South Africa has avoided these problems for several reasons. Firstly, there is a solid theoretical framework underpinning the notion of loss of self-control which derives much of its content from the Rumpff Commission Report, and the case of Laubcher which provides guidance on the application of the test for capacity. The recognition of affective functions causing lack of criminal capacity in South African law has brought persons such as the battered women within the scope of the defence and has avoided the problems relating to gender discrimination, therefore it is submitted that this was a positive and forward-thinking development in South African law. Therefore, it is submitted that the Eadie judgment is problematic on several levels and has brought tremendous confusion and uncertainty to the defence of non-pathological incapacity due to provocation and emotional stress. Judicial intervention is necessary in order to bring clarity and restore the defence of non-pathological incapacity due to provocation and emotional stress in terms of the two stage test delineated by Laubscher by over-ruling Eadie. It is submitted that the fears of easy acquittals are unfounded, proper application of the established principles governing the defence are adequate safeguards for preventing facile acquittals. However, there is one short-coming of the defence, this relates to the uncertain role of expert evidence. It is submitted that analysis of South African case law reveals that there is lack of clarity regarding the role of expert evidence in cases involving non-pathological incapacity due to provocation and emotional stress. There is uncertainty surrounding the necessity of the expert testimony, though it has been stated that the success of the defence is unlikely if expert testimony is not led in support of the defence. Due to the nature of this defence, which may involve killings arising from trauma, especially when abused persons are involved such as the battered women, the law should be reviewed with the view of making referrals for psychiatric evaluation and counselling mandatory. Providing a structure regulating expert evidence will assist in ensuring that case law is consistent. xiv Furthermore, from the assessment of case law it is clear that an imbalance of expert evidence on the part of the prosecution may deprive the court of a balanced view and result in inconsistent case law. Thus, it is proposed that expert testimony should be mandatory. This, according to Burchell, will ensure that the court obtains a balanced, well-informed view, which will work to prevent facile acquittals and ensure consistent outcomes of cases. The defence of non-pathological incapacity is lacking in this respect; consultation and review of this area is required with the view to formulating a structure that could form part of the provisions of the Criminal Procedure Act of 1977. Furthermore, it has correctly been argued by Burchell that expert evidence should be led after evidence relating to the accused‘s version of events has been heard. Expert witnesses would thus have an opportunity to re-evaluate their evidence after hearing the facts of the case as well as hearing the accused‘s version being tested at crossexamination. This is important since the psychiatric evidence is largely based on the cogency of the accused‘s version of events. It is submitted that these proposals will ensure that established principles which were eroded by Eadie are restored while addressing a clear void in respect of the lack of clarity and framework delineating the role of expert testimony. The defences in both England and Canada are based on the misguided need to accommodate human frailty and predicated on the problematic concept of loss of selfcontrol which favours angered states, there this concept lacks effective content. This is the reason that determining the rationale for the partial defence in both jurisdictions has proved tricky. The defence in both England and Canada falter in this respect. It is submitted that it is unwise to adopt the foreign models of the provocation defence such as the English and Canadian model. The defence of non-pathological incapacity is a simple formulation which lacks the unnecessary complexities and unfair rigidity of both the English and Canadian codified provisions. A coherent rationale exists which provides for a solid basis for providing an acquittal based on blameworthiness.


Doctor of Philosophy in Law. University of KwaZulu-Natal, Pietermaritzburg 2015.