Non-pathological incapacity : reassessing the defence of provocation and emotional stress in South Africa.
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Date
2015
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Abstract
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.
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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
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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
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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
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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
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―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.
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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
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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.
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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
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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.
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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.
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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.
Description
Doctor of Philosophy in Law. University of KwaZulu-Natal, Pietermaritzburg 2015.