Archive for the ‘Education’ Category

The extent of force permitted in effecting and arrest is different to the extent of force permitted in private defence.
An arrest serves one legitimate purpose only: to secure attendance of a suspect at court to answer to a charge. The purpose of the right to use force in private defence is to protect person or property from an imminent attack or to end an attack that has commenced.
The law on the force permitted in effecting an arrest is set out in section 49 of the criminal procedure act:

“(1) For the purposes of this section-
(a) ‘arrestor’ means any person authorised under this Act to arrest or to assist in arresting a suspect;
(b) ‘suspect’ means any person in respect of whom an arrestor has a reasonable suspicion that such person is committing or has committed an offence; and
(c) ‘deadly force’ means force that is likely to cause serious bodily harm or death and includes, but is not limited to, shooting at a suspect with a firearm.
(2) If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing, but, in addition to the requirement that the force must be reasonably necessary and proportional in the circumstances, the arrestor may use deadly force only if-
(a) the suspect poses a threat of serious violence to the arrestor or any other person; or
(b) the suspect is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of effecting the arrest, whether at that time or later.”

Thus, notice, lethal force may not be used to effect an arrest for a suspected property crime – contrary to what some politicians who ought to know better have been saying.
On the other hand, the use of lethal force in defence of property is controversial. The leading case, S v Van Wyk 1967 AD, approved the use of lethal force in defence of property but only when the property is of significant value and there is no other means to protect it. This judgment was restrictive in itself. However, it is pre-constitutional, and one may expect that the Constitutional Court may well restrict it further. I am expecting that there will be a change in the meaning of significant value, which, under Van Wyk may be interpreted to be a reference to the property’s monetary value. I am expecting that, when our Constitutional Court considers this question – which it has surprisingly not had an opportunity to do – it will probably endorse the right to use lethal force in defence of property and, again, as did the Court in Van Wyk, limit it to circumstances in which there is no alternative. However, I am expecting that the Constitutional Court will restrict the use of lethal force to property of significant value where value is judged by – its real value – how necessary it is for the enjoyment of other rights: ones right to life, to employment, to shelter, to food. I expect that even under Van Wyk, and certainly under what I am expecting from the Constitutional Court, one will not be permitted to use lethal force in defence of property of trivial value or value which is unnecessary for the enjoyment of other rights. So, while you may use lethal force against someone, under Van Wyk and under what I expect from the Constitutional Court, to stop someone from burning down your home, you may not shoot someone for stealing a loaf of bread or stealing your big screen TV. Yes, someone’s life is worth more than a big screen TV.

The SAPS are bound to these same laws when acting in defence of property. So, for instance, while the police may not use lethal force to arrest you on suspicion of a property crime, they may use lethal force against you in defence of property – of significant (real) value.
Thus, either way, and unless the SAPS is acting in defence of property of significant real value in the sense described above, they may not use lethal force, and if their purpose is to arrest for a suspected property crime, rather than defend property, they may never use lethal force to effect that arrest.
When can one resort to lethal force? What if I or someone else is attacked? Can I use lethal force then?
The answer to this – is an unequivocal yes. Our law may be ass-like on many fronts, but on this question, it is not. If you or a loved one, or a stranger in your presence, is attacked and his/her life or bodily integrity is threatened, you may use such force as is necessary to end the attack. If there is no alternative and the life or bodily integrity (beyond the trivial – such as by a slap) is threatened, you may use lethal force and kill the attacker. This is incontrovertible.
Returning to what the police may do – they enjoy the same rights as all of us to act in private defence and the right to use circumscribed force in effecting an arrest. So, they may use lethal force in defence of property of significant (real) value – for instance, they would be permitted, as would you, to shoot someone who is about to set fire to someone’s home. They may not ever use lethal force in order to arrest someone for property crime.
However, in protecting a themselves or another person from serious violence, they may use lethal force, as you may, to protect that person, and, also, after the fact, to effect an arrest for a violent attack.

Introduction

In the early hours of Friday morning, 31 March 2017, following a meeting with senior ANC officials, President Jacob Zuma announced that he had decided to reshuffle his cabinet. The reasons he gave were that the reshuffle was for effectiveness and efficiency and to draw younger people and women into the cabinet. Amongst those removed was Pravin Gordhan from his post of Minister of Finance.

There was an immediate response of accusations against Zuma that he was lying and that his true reasons were those of patronage and ultimately of self enrichment.

The question arises, if it is true that Zuma was lying, whether the criminal law has any possible response.  The answer seems to require an analysis of when lying is punished as a criminal offence in our law – which it sometimes is under the offence of fraud.

In what follows I consider whether – on the assumption that Zuma did indeed lie – he may have committed the crime of fraud. The conclusion is that it seems – on the relevant assumptions made – that Zuma may well have committed fraud as it is understood in our law. As will be seen, this does not require any sort of novel application or development of the law of fraud . It is not straightforward, but that is a function of the law of fraud itself which is inherently complex. However, once the complexity is grasped, it seems clear that Zuma may well have committed fraud.

Facts

The facts against which this will be considered are as follows:

Jacob Zuma met with several senior members of his party late on 30 March 2017 to seek their approval for his proposed cabinet reshuffle.

At the end of that meeting, at 00:31 (midnight) he announced that he was reshuffling his cabinet for – his reasons: efficiency and effectiveness and to give woman and younger people a chance to serve in cabinet.

The markets reacted almost immediately and the rand began to fall, capital started leaving SA’s market, and South African bonds lost value. Within days the loss was in the billions. As at the time of writing, S&P had downgraded SA to “junk” status – in direct response to Zuma’s move.

Assumptions

The question that arises here for consideration all turns in whether the reasons given by Zuma are false. Many senior respected individuals have suggested – with some detail – that Zuma’s ultimate motives were not as he claimed, but rather driven by concerns with patronage and self enrichment. The discussion that follows will presume that this is true for the sake of analysis. The question of interest is whether he could be convicted of fraud if he lied about his reasons.

I will also presume that a court would have overruled a decision to reshuffle the cabinet based on a President’s concerns with self-enrichment and patronage. I am well aware that the DA attempt to have the swearing in ceremony of the new ministers interdicted and that the Court declined to do so. However, there would be fundamental differences between that application – aimed at the swearing in in which the applicant was unable to provide essential evidence of improper motive,  and one in which the decision itself was attacked and the evidence is based on what Zuma admitted  on national television and published through government communications.

Fraud

Fraud is the unlawful intentional making of a misrepresentation which is prejudicial or potentially prejudicial to another.

Therefore, fraud requires that someone:

  1. intentionally
  2. unlawfully (with no right to do so – such as in self defence or with consent);
  3. misrepresents something;
  4. which causes actual or potential prejudice.

Setting aside for the moment the requirements of intention, unlawfulness and prejudice – which I will return to shortly, the crucial issue will be whether he made any form of misrepresentation.

Misrepresentation

As will be seen, this will resolve down to the question of whether he lied. Ordinarily, in the context of fraud, the misrepresentation is a statement (oral or in writing) that something is true, which is, in fact, false. Classically, examples include telling someone that a piece of glass is a diamond, or that, say, a vehicle has only done 20 000km, whereas it has, in fact, done 200 000km.

Crucially however, one may misrepresent something by implication alone and by misrepresenting one’s state of mind (R v Persotam 1938 AD 92; R v Deetlefs 1953 (1) SA418 (AD)). The Court in S v Isaacs 1968 2 SA 187 D stated that “the state of a man’s mind is as much a fact as the state of his digestion” (p 191).

For example, if I walk into a restaurant and sit down, I imply that I intent to pay for any food or drink served to me. I represent that my state of mind is that I intend to pay. If, in fact, I don’t intend to pay, assuming some other minor requirements are also satisfied, I commit fraud and I do so at that moment – at the moment of my implied state of mind.

Applied to Jacob Zuma’s cabinet reshuffle, the question is whether his mental state was other than what he said and implied it was. Notice that not only did he explain that his reasons were for efficiency and effectiveness, but, as the President, he implies that his reasons are informed by the best interests of the country. His representation therefore was that he took the decision(s) for efficiency and effectiveness in the best interests of the country. In the result, on the assumptions above, it seems that Zuma made a misrepresentation.

Prejudice

Prejudice is widely defined in law to include proprietary and non-proprietary loss – that is, it is not limited to losses that have a monetary value. Prejudice may be non-proprietary in the sense that it causes someone to become exposed to civil or criminal litigation (R v Seabe 1927 AD 28) to contract with someone they otherwise would not (R v Deale 1960 (3) SA 846 (T)) or otherwise to suffer a significant degree of what amounts to inconvenience.

In the case of R v Heyne 1956 (3) SA 604 (A) the accused was a person licensed to sell alcohol under strict conditions – including the keeping of an accurate sales register. He had falsified the entries to permit for more sales. He was convicted of fraud on the basis of the potential prejudice to the State’s ability to control the supply of liquor. The accused had posed a risk of interference with proper governance.

There can be no question that the decision to reshuffle and the reshuffle itself caused billions of rands of loss – actual proprietary prejudice. But one must recall that it is the misrepresentation that must cause the actual prejudice or pose potential prejudice. We know that the decision and reshuffle made caused loss, but the decision and reshuffle was not the misrepresentation.

Arguably, also, the financial (patrimonial) losses resulted not from a belief in the lies, but from disbelief. In this sense there can be no claim that Zuma’s lies caused the losses that resulted from the markets falling precisely because investors did not believe him.

However, if a bank paid out a million rand of Z’s money to X on the misrepresentation of X to Y, who is a bank teller, that X is Z, X cannot rely on the fact that he made the misrepresentation to Y – and not the bank. This links the misrepresentation to the prejudice in the form of the proprietary losses – of billions of rands of losses on the markets – by taking account of the effect of the misrepresentation on the intermediaries: the senior party members with whom he met and then civil society.

Also, it is worth observing that this form of fraud – that we are concerned with here – would be unconventional in the sense that, instead of requiring of the victim to do something, to his or her prejudice, in this case the president would require that the victim(s) did nothing and let him do what he wants. What Zuma needed was to be allowed to do what he wanted without anyone frustrating his plans by political means or, ultimately, by legal action.

Also, as indicated, it is not necessary that the prejudice suffered must be proprietary in that it has a value in money. As discussed above, fraud can also be committed by causing non-proprietary prejudice, or, following on what was said immediately above, potential non-proprietary prejudice. Non-proprietary prejudice includes – discussed above – even causing a weakening of proper governance. Once this is understood, the proposition that Zuma may have committed fraud is not such a stretch after all.

Is there conceivably something that could have been done if Zuma had told the truth – that he was annexing, for his ultimate own ends, the resources of treasury? If one regards this – as it must incontrovertibly be – a consumate act in breach of his constitutional obligations, then there was, at the very least, or perhaps at the very last, the option of urgent court intervention.

To follow through then, one must consider what the position would have been if Zuma had not made the misrepresentation. This requires that one consider what would have happened if Zuma had told the truth – on the assumption that the allegations of self-enrichment and patronage are true. Imagine if Zuma had throughout told everyone, before he made the decision and in testing the lie on his fellow party members, and afterwards in making the announcement that has decided to reshuffle his cabinet, that he was motivated by considerations of self-enrichment and patronage. One may expect that he would have realised that it would be unwise to proceed or would been blocked by some members of his own party. Assuming his own party members moved against him, all losses may have been averted – proprietary and non-proprietary.

If this had not halted the reshuffle, one may imagine the legal response which an announcement at midnight from Zuma of his true intentions would have triggered and, at the same time, it would have provided the best evidence possible that his decision violated the Constitution and the rule of law. Assuming that he was permitted to make the announcement that he intended this unlawful course of action, there would have been some losses (proprietary and non-proprietary), but one may expect that immediate and decisive action in the Courts  – perhaps at sunrise that morning – to prevent the move would have contained the damage.

If he had told his fellow South Africans at 00h31 in the morning of his intentions and his true reasons, one may expect that political opposition parties and civil Society organizations would have been waiting at the doors of the courts as they opened that morning. Some judges may have been dragged from their beds and begged to hold court in their kitchens within hours of the announcement – as the rules of Court permit.

Would they have had a better chance than the DA did at 18h00 on that Friday night? As indicated above, there would have been crucial differences: 1) the damage would not already have been done in the sense that the announcement had yet to be implemented; and 2) there would have been the clearest evidence required for a court to conclude – at least provisionally – that the President had gone mad. I suspect that a Court would have issued an interim interdict against the president.

However, if this seems too speculative, fraud does not require that the lie is actually believed and that loss is actually incurred. It is enough if the misrepresentation posed potential prejudice – that is, it could have, at the moment it was made, caused prejudice or loss – irrespective of whether loss actually occurred (R v Kruse 1946 AD 524; R v Heyne 1956 (3) SA 604 (A); R v Seabe 1927 AD 28). It would be enough if, in making the misrepresentation, a reasonable person might have acted on the misrepresentation. Crucially – again – this is tested by reference to an objective standard – a reasonable person – and not the actual people to whom it was communicated. In this context, acting on the misrepresentation meant taking no action and allowing Zuma to proceed to make the announcement of the reshuffle and to effect the reshuffle.

The question becomes – on hearing of Zuma’s intention to reshuffle the cabinet for nefarious purposes – would a reasonable person have stood by and done nothing – or is it possible that s/he would have moved against Zuma and initiated a process to stop Zuma in his tracks?

In other words, the prosecution will not have to prove that the lie did actually immobilise those who would otherwise have frustrated his move, but only that, it might have. It seems entirely possible that had Zuma told the truth, someone would have moved against him and that either all or some of the proprietary and non-propriety loss may have been averted.

It would seem then that a court may be persuaded that his misrepresentation caused the necessary prejudice or posed the necessary potential prejudice.

Unlawfulness and Intention

Regarding unlawfulness, there appears no conceivable ground on which a misrepresentation of this nature could ever be justified. It is, almost axiomatically, unconstitutional and therefore unlawful.

Was there the required intention? This would require that Zuma foresaw and accepted the following:

  • That his representation was false. We should recall that the misrepresentation was one relating to his mental state. It is virtually inconceivable that he did not know that he was misrepresenting his true motives.
  • That the misrepresentation, at least, posed potential prejudice. That is, did he foresee that if he told the truth he would be halted and that, if he wasn’t, that South Africa would sustain severe losses in the markets or that he would constitute a cabinet incapable – or less than optimally capable – of proper governance in the best interests of South Africa.
  • That he had no right or other legitimate justification for making the misrepresentation. One may expect that any court will be satisfied easily that Zuma knew he was not entitled to make this misrepresentation.

It seems conceivable that a court may be persuaded of all of this.

Proof

Will this be impossible to prove? There can be no question that proving that a person believed or thought something other than what they claim to have believed or thought is a difficult task.

However, it is a task that is undertaken and achieved on a daily basis in our courts when the state is put to the proof by an accused who denies that he intended to kill, to steal, to assault – and, of course, to defraud. The courts operate on the “must have” inference – that is, that, given the evidence, the accused must have been thinking, say, P, and not as the accused claims, Q. Sometimes the inference is based on the circumstances alone, sometimes based on what the accused him/herself says – even in an attempt to deny responsibility. Often it will be based on what the accused told others in confidence – especially when those others need to offer up something or someone to save themselves. The point, of course, is that while this task may be difficult, it is by no means impossible.

Others

It is worth considering whether the liability for fraud extends to anyone else. The answer is an unequivocal yes – to anyone who knew – or suspected – that Zuma was lying and who assisted by doing something or by doing nothing when our Constitution requires that they did something. These people would all qualify as accomplices to the fraud, and be liable to the same punishment as Zuma himself.

Conclusion

On this analysis then, it would seem that there is a very real prospect that – again, assuming the representations were false and this could be proved – Zuma could be convicted of fraud. This could be charge number 784.

James Grant

 

 

 

There is some suggestion that charges of crimen injuria for the racist insults of Penny Sparrow (and others) cannot attract liability in criminal law in SA because crimen injuria requires the relevant insult to be directed at an individual rather than a group.
Crimen injuria is defined as the intentional unlawful impairment of the dignity or privacy of another (Burchell, 2013, 4ed, 632).
The essential requirements of the offence are as follows:
1. Intention;
2. Unlawfulness;
3. Impairment of the dignity of another.
Some definitions include a qualification that the impairment must be serious (Milton, 1996, 492). However, it is clear that this qualification is accounted for under the requirement of unlawfulness – since the law does not concern itself with trivialities (de minimis non curat lex).
The suggestion under discussion here – that the the relevant insult must be directed at an individual rather than a group – would seem to be addressed to the intention requirement. That is, one may expect that this is a suggestion that the accused must intend to infringe the dignity of a particular specified victim. However, there appears no suggestion that the general principles relating to intention, according to which the identity of the actual victim is irrelevant, S v Pistorius 2015 SCA) do not apply to crimen injuria.
Our law recognises that one intends to kill whoever is killed if one throws a bomb into a crowd – even though one does not know who is in the crowd. This is known as dolus indeterminatus – general intention – in our law. In the same way, there seems not basis to suspect that this “bomb” could not take the form of an offensive social media post.
The application of general principles of intention to crimen injuria is supported in the leading text on common law offences in SA, South Africa, JRL Milton, South African Criminal Law and Procedure (vol II, 1996, p 516 n274) – although Milton was endorsing the view that general principles make dolus eventualis a valid form of intention for crimen injuria.
The authority for the proposition that the relevant insult must be directed at an individual rather than a group appears to arise out of Snyman (6th ed, p463). Snyman states:
“An attack, not against Y himself, but against some group to which he is affiliated (eg his language group, his religion, race or nationality) will normally not constitute a violation of his dignitas, unless there are special circumstances from which an attack on his self-respect can be deduced.”
Snyman cites the case of S v Tanteli 1975 2 SA 772 (T) as authority for this proposition.
It is a tragic irony, that this cases appears to be a possible obstacle – albeit a small one – to successful prosecution of statements such as “all black people are monkeys”. The alleged insult in Tanteli was that the language, Afrikaans, was only suitable to be spoken to or with black people [described, in that case, by the accused using the pejorative k* word].
The insult or sting arising out of the Penny Sparrow social media post – in case this has escaped some – that “black people are monkeys” is that it suggests that black people are, in themselves, inferior as of a lesser species.
There are several points to be observed here.
The first is that this case is a Transvaal Provincial Division case – now the Gauteng Provincial Division (situated in Pretoria). If it contains any precedent (and I will below argue it does not), that is, anything binding on cases that follow, it would in any event be restricted to Gauteng. Even in Gauteng, since the Tanteli case was a single Judge judgement, it does not bind courts sitting with more than one Judge (“higher” courts). It may, on the rules of precedent, be persuasive in “higher” courts in Gauteng or in other jurisdictions (provinces), but it is certainly not binding in “higher” courts or other jurisdictions.
Also, while the judgement is mentioned and relied upon in Snyman’s text on criminal law in South Africa, it is not mentioned in the other leading general text on criminal law – written by Burchell. Perhaps more importantly, it is mentioned in what is arguably the leading text on common law offences in SA (Milton, South African Criminal Law and Procedure (vol II, 1996) only as a case to be distinguished from the general principle. This may itself be read as an indictment on the case.
The second is that Snyman’s rendition of the case authority is in one respect not a true reflection of what the court held. The third is that, in another respect, Snyman’s rendition is true, which requires in turn some analysis of the judgement in the Tanteli case.
To begin, Snyman’s rendition is not correct in that Nicholas J in Tanteli did not say that only in exceptional circumstances can an insult against a group with which one associates provide a basis for a conviction of crimen injuria. He found that, on the facts in that case, the dignity of the victim was, in fact, not injured. He said as follows: “There may, of course, be cases in which an insult to a person’s language, or race, or religious persuasion or national group may, in the circumstances, constitute also an impairment of his dignitas, but this is not such a case.” (p. 775). There is not mention of a requirement of special circumstances.
Snyman’s rendition is correct however insofar as he reflects that the judgement did seem to distinguish between an attack on a person as opposed to an attack on an attribute of a group, with which s/he associates him/herself. It is worth considering if this is a valid distinction, or, at least, one that could possibly prevent a conviction of crimen injuria in scenarios where a group, as a whole, is insulted, where the victim is part of that group.
Already a difficulty becomes apparent in trying to distinguish between an insult against:
1. an attribute of a group with which the victim associates; and
2. a group to which one belongs.
The vague distinction between these two seems to turn on the distinction between associating with an attribute of a group as opposed to being part of a group.
The question being begged here is what it means to be part of a group. It is at least possible to regard belonging to a group as associating with the attributes of that group. Arguably, under this description, to “belong to a group” may require that it’s members associate with more than one attribute of a group – but this does not seem to be necessarily true. A group may, conceivably, be defined by a single attribute which it’s members have in common. That being so, the distinction drawn in Tanteli is unsound.
Apparently the crux of the judgement is not in its attempt to distinguish between individual and group insults, but rather between insults that can be considered to strike at a superficial level as opposed to an insult which strikes at one’s core. As dear as our languages may be to us, it must in a different league to suggest that my language is inferior, as opposed to that I am inferior.
This is revealed or reinforced if one imagines what the outcome would have been if, instead of an insult to the language of the complainant to the effect that his language was inferior, the insult was to the effect that he was inferior. There can be little question that a conviction for crimen injuria would have, and probably should have, followed.
The example above also illustrates the point made above – that there can be no valid distinction based on an insult to a group attribute versus the individual. It would scarcely have helped the accused to have argued that she had only said that say, Afrikaners are inferior, as opposed to that Afrikaans is inferior. The proposed distinction between an insult directed at a group as opposed to the individual breaks down because it is clear that the true distinction is between an insult that may be hurtful, but superficial, compared with one that goes to the core of the person.
In conclusion, the only authority for the proposition that an insult must be directed at a specified person as opposed to a group appears to come from the case of Tanteli. This case is limited in its binding effect – to single Judge courts in Gauteng. It is apparently identified by the leading text on common law crimes in South Africa as an anomaly. Finally, the distinction described in the case between an insult to group to which the complainant associates him/herself as opposed to one directed at the individual appears to break down on analysis. The true distinction appears to be whether insult is superficial as opposed to one that goes to the core of a person’s sense of self worth. The Tanteli case, and the suggestion that an insult must be directed at a specified person, cannot possibly stand in the way of a conviction for crimen injuria in cases where an insult was directed against a group, where the insult offends the very core of the members of the group. In such a case, far from providing a defence that no individual was insulted, the insult is aggravated in that it offends an entire group of individuals.

The recommendation of the Farlam commission that some police members can only be charged with attempted murder because it could not be proved which officers had shot which miner is, on the law as it stands, wrong.

It is important to extract the facts that this recommendation appears to concede: that these officers unlawfully fired at the miners with the intention to unlawfully kill them. This places in issue only the link between the conduct of each officer and the death of any miner.

In circumstances such as these, our law resorts to the doctrine of common purpose. It is a controversial doctrine and was certainly abused under apartheid. For what it’s worth, I am opposed to its use and believe that there are adequate alternatives in our law (see James Grant Common Purpose: Thebus, Marikana and Unnecessary Evil 2014 1 SAJHR 1). Nevertheless, common purpose is relied upon in our criminal courts on a daily basis and it has been sanctioned by the Constitutional Court (in the case of Thebus v S 2003 (6) SA 505 (CC)). To my knowledge, the doctrine has never been invoked against the police, but there is nothing in principle why it cannot be used.

The doctrine is designed for exactly the scenario that Farlam says prevents a murder conviction – when one cannot be certain, which one, of a group of attackers, actually killed a victim.

The doctrine holds that each person acting together with others in an unlawful attack, is to be regarded as having done whatever everyone did. So, if A, B and C, agree to attack and kill Y, and that A will stand as lookout, while B will strike Y with a stick, and C will shoot Y, it does not matter that C, in shooting Y, causes his immediate death, all will be liable to a murder conviction for the death of Y. It is irrelevant that B’s conduct (with his stick) only inflicted minor and insignificant wounds, nor even that A is causally irrelevant to the death of Y. Indeed, both A and B are causally irrelevant to the death of Y. Nevertheless, on our law, as it stands, all three may be convicted of murder under the doctrine of common purpose. It is equally irrelevant that it cannot be established which police officer caused the death of which miner.

It is helpful to understand the work that common purpose actually does. It allows our courts to pretend that whatever anyone in a common purpose does, is what everyone does. Thus, on the example above, A does, on our law, what he does, but also whatever B and C does. And so with B and C. B does what he does, but also what A and C does. And so on.

If a police officer can be convicted of attempted murder for his/her part of the attack on the miners, they are almost invariably liable to a conviction of murder – on an application of common purpose. Every police officer who triggers the operation of common purpose, did whatever every other police officer did in that common purpose. Thus, an officer who fired but perhaps missed, also did what his fellow officers in the common purpose did – some of whom fired, struck, and killed the miners – but it doesn’t matter who.

It is true that common purpose has its own requirements and that there are two forms of it. In this case, recognition of these different forms and the requirements of each reveal that it is not only those officers present on the scene who may be convicted of murder, but that liability for murder may stretch up, to anyone who was a party to the plan to resort to the ‘tactical option’, and who foresaw that anyone may be unlawfully killed in the execution of that plan.

The two forms of common purpose are known as prior agreement and active association. Common purpose by prior agreement for murder requires that the parties must, at some prior meeting, foresee the possibility that people may be unlawfully killed upon the execution of their plan (S v Madlala 1969 (2) SA 637 (A); S v Nzo 1990 (3) SA 1 (A)). It is certainly possible that at all and any meetings that discussed the ‘tactical’ option, the unlawful death of miners was foreseen by some. Whoever in those meetings had this foresight – on this form of common purpose – are regarded as having done what they foresaw may happen – even if they were nowhere near the scene at the time of the killing. This has serious consequences, because it allows liability for murder to creep up the chain of command, restrained only by what was foreseen as possible.

The second form of common purpose, active association, is resorted to when the first, prior agreement, doesn’t apply. It is possible that many of the officers who fired their weapons on the day, were at a previous meeting at which they foresaw the possibility of unlawful killing, and thus already satisfied the requirements for common purpose to operate. However, if not, they may have formed a common purpose (by which they can be held liable for an unlawful killing by another officer), by active association, if (Mgedezi 1989 (1) SA 687 (A); Thebus above): 1) the officer was present on the scene; 2) s/he were aware of the attack; 3) s/he intended to be part of the attack; and 4) s/he did something to manifest his/her sharing of the common purpose.

Before we consider how this may apply to the scenario at the scene we must remember what Farlam concedes: that some officers unlawfully fired at the miners and intended to unlawfully kill them. Assuming this, the requirements of common purpose by active association may well be satisfied, as follows: 1) The officers who fired at the miners were present on the scene; 2) They must have known of the unlawful attack on the miners; 3) they must have intended to be part of the unlawful attack on the miners; 4) they did manifest their sharing by virtue of firing their weapons. Thus, even if they are not liable by prior agreement, they may well be liable to a conviction of murder by operation of common purpose by active association.

This is not a suggestion that all officers on the scene are guilty of murder, nor even that those who discharged their weapons are necessarily guilty of murder. It is the argument that if, as the Farlam recommendation appears to concede, some officers unlawfully fired at the miners with the intention to unlawfully kill them, the absence of a link between the conduct of each officer and the death of any miner can be cured by an application of common purpose. It means that if any officer could be convicted of attempted murder, s/he could be convicted of murder. Of course, the opposite is true, but is worth noting: if an officer cannot be convicted of, at least, attempted murder, there will be no basis on which to convict him/her of murder, by an application of common purpose.

Thus, by an application of the doctrine of common purpose, any officer who could be convicted of attempted murder, may be liable to a conviction of murder. Furthermore, liability based on common purpose for any murder may easily creep up the chain of command to anyone in any planning meeting who foresaw that their plan may result in unlawful killings.

– James Grant

*** This is a revised and substantially expanded version of the post “Unsuccessful attempts to Justify Judge Masipa’s Errors”. It is organised around themes rather than individual commentators. ***

Introduction

There is something deeply disturbing about many of the attempts that have been made to justify Judge Masipa’s judgment in the Pistorius case. They seem to take the line that her conclusion of culpable homicide was conceivable on the law as it stands, and therefore, although her reasons were questionable, her conclusion was correct. It’s the argument that the end justifies the means. This type of justification is as problematic in law as it is in most other areas of life.

In law it is a licence to introduce uncertainty in our law, or worse, distort or destroy the proper functioning of the principles. Perhaps even worse than that, it seems to reconcile with the notion that the principles don’t matter, as long as the right conclusion was reached. This is the worst possible implication because it reconciles with a lawless society. We must not accept this. It is not even the thin edge of the wedge – it is the wedge, the whole of the wedge.

Another common theme can be observed – related to the point made above. It’s the notion that there was nothing wrong with Masipa’s reasons because they are in line with a defence raised even if she did not actually apply the defence or principles underlying the defence. This is all very well, except that if the Judge did not actually rely on that defence or the principles underlying the defence, we cannot pretend that she did. This is law by wishful thinking. I’m not sure it’s as bad as lawlessness. But if lawlessness was bad, this is madness.

At this point it doesn’t serve any purpose to attempt to respond to the arguments raised in justification of Masipa’s judgment on an individual basis – that is, organised by individual attempt. It seems more sensible to extract the common themes from comments made (to date) and respond to those.

It is necessary to explain what dolus eventualis, dolus indeterminatus, error and objecto and putative private defence are, before I move on to explain what they are not. All of this is easier to understand when illustrated by the crime of murder – which is the intentional unlawful killing of another human being.

To confirm – we only have one single crime of murder in our law. Premeditation relates to bail or sentence. Also, no matter what form of intention you have, if you have any form, and if you unlawfully kill another human being, you are guilty of murder.

For authority, other than case law, I will refer to and quote from the textbooks of, arguably, the two leading authors on South African criminal law: Burchell (Principles of Criminal Law, 2013, 4th ed) and Snyman (Criminal Law, 2008, 5th ed). Both have also commented on the judgment in the Pistorius case, which I will discuss below.

Dolus Eventualis

Dolus eventualis is the widest form of intention known in our law. It exists (on the law as it stands: Ngubane 1985 AD; Humphreys 2013 SCA) where the accused, at the time of the killing: 1) foresaw the possibility of killing a human being; 2) accepted this risk; and 3) proceeded nevertheless.

Quite correctly it has been observed that, originally, Molemo Maarohanye (known as Jub Jub) was convicted of murder because he was found to have foreseen the risk of killing his victims, and to have accepted/reconciled to that risk. This conviction has now, on appeal, been reduced to one of culpable homicide and a sentence of 8 years imprisonment imposed. Humphreys (2013 SCA) was convicted only of culpable homicide. The facts of Humphreys are, briefly, that Humphreys drove a taxi and was transporting children. He approached a railway crossing where the boom had come down to stop traffic – in anticipation of a train that was about to pass. Humphreys switched to the right hand lane, overtook the waiting cars, and the boom, and begun to cross the railway line – directly in front of the oncoming train. The train struck the taxi killing 11 of the children being transported. Humphreys was charged with the murder of the 11 killed, but convicted of culpable homicide because the court found that, although he foresaw the risk that the children in his taxi could be killed, he did not accept the risk. This is an exceedingly controversial decision. The court’s reasoning seemed to be that he could not have accepted the risk, because, since he was driving the taxi, he too would be killed, and there was no evidence that he was suicidal. The apparently strange reasoning arose out of an application of the law of dolus eventualis.

The definition of dolus eventualis has been controversial for years – since the decision of Jansen JA in S v Ngubane (1985 AD). The definition of dolus eventualis adopted in Humphreys was set out in Ngubane. The definition was subject to devastating academic criticism. Nevertheless, this criticism was not even mentioned in Humphreys, when the court uncritically adopted the Ngubane definition of dolus eventualis.

However woeful our law is in respect of the requirements of dolus eventualis, Masipa’s judgement did not turn on a finding – that was crucial in the Humphrey’s case – that, although the accused did foresee the possibility of killing whoever was behind the door, he did not accept that risk.[1] Again, that would have been a valid basis (on our law as it stands) to acquit the accused of murder. However, from the wording of her judgement, this was not the reasons she gave for acquitting the accused of murder.

It is also notable that the defence never argued (as some commentators are now suggesting) that the accused had not intended to kill – but only, perhaps, at most, intended to injure. This would have been a valid defence against murder, but it was not a defence claimed, and certainly not one – from the wording of her judgement – relied on by Masipa as a basis on which to acquit the accused of murder. I don’t see how it could possibly make Masipa’s judgement right to refer to a basis on which she could have relied, but did not.

Identity: Dolus Indeterminatus and Error in Objecto

Our law distinguishes one’s identity in the sense of one’s body as opposed to someone else’s body (which I will refer to as object/body identity) from one’s identity in the sense of your name and other characteristics, such as your personality (which I will refer to as nominal/name identity). Nominal/name identity is irrelevant in our law – just as the colour of a victim’s clothing is irrelevant on a charge of murder. You cannot raise the defence that you thought the victim was wearing a yellow shirt whereas it turns out to be blue. In the same way, you cannot raise the defence that your victim’s name happens to be Peter, and not John.  If you have intention to unlawfully kill a human body, and you succeed in unlawfully killing that human body, you have committed murder in SA law.

This distinction and the irrelevance of nominal/name identity is borne out by our law in recognising that intention may be general (dolus indeterminatus), and in the attitude our law has taken to scenarios of error as to object (error in objecto).

Dolus Indeterminatus

Dolus indeterminatus is at play in scenarios where the accused throws a bomb into a crowded room. The accused may have no idea who is in the room (at the very least in the sense of nominal/name identity),[2] but intends to kill whoever is in the room. The accused cannot raise the defence that s/he did not intend to kill because he had no specific (nominal/named) victim in mind. (Burchell (4th ed, 2013) explains dolus indeterminatus as follows:

“Where a person throws a bomb into a crowd or derails a train, the fact that he or she has no particular intention to kill a particular individual in the crowd or upon the train does not mean that the person lacks intention. Since he or she knows or foresees that someone will die, this person has what is called ‘general’ intention or dolus indeterminatus. Dolus directus, indirectus or eventualis may be general or indeterminate intention.”[3]

The point here is that it is no defence to say you had no particular victim in mind. On this form of intention, the accused need not have known who was in the room at all, but will be held to have intention to kill nevertheless.

This principle extends liability. It excludes and denies a defence of mistake as to identity, at least in the sense of nominal/name identity. There is no basis for any suggestion that it somehow permits for exceptions. The rule is that you will not be able to validly argue, when you killed B, C and D, that you did not know that B, C, and D were in the room. There appears to be no basis on which it may be argued that somehow this rule would or should yield if one had some reason for thinking that, say, D was not in the room.[4] It will not be a defence for an accused to argue that s/he only thought that B and C were in the room, or that B, C and E were in the room. The point is that it doesn’t matter who was in the room. It certainly cannot matter that an accused thought that B, C and E were in the room, because the accused thought that D was not in the room.[5]

It follows necessarily that no matter what reason Pistorius might have had for thinking – if indeed he did – that it was someone else behind the door, and not the deceased, this cannot be a defence and it is no ground upon which to find that he lacked intention to kill.

This is confirmed by our law’s approach to problems that are far more like that of the facts of the Pistorius case. In our law, if one aims a shot at a particular human body (identified by a particular object/body), fire at and kill that particular human body, it is no defence if it transpires that that human body has a different name to what one expected. This is the essence of the law on error in objecto (error as to object).

Error in Objecto

Burchell (4th ed, 2013) distinguishes aberatio ictus (going astray of the blow – missing one’s target) scenarios, from error in objecto scenarios as follows:

“Aberratio ictus must be distinguished from error in objecto, since difficulty arises if the two are confused.  Error in objecto occurs where A, intending to kill B, shoots and kills C whom he mistakenly believes to be B. In these circumstances A is clearly guilty of the murder of C. A’s intention is directed at a specific predetermined individual, although he is in error as to the exact identity of that individual. In other words, he intends to kill the individual regardless of whether the name of the individual is B or C. There is thus in the case of error in objecto, so to speak, an undeflected mens rea which falls upon the person it was intended to affect. The error as to identity is thus … irrelevant to the question of mens rea. On the other hand, in the aberratio ictus situation A intends to kill B, but misses him and kills C. A’s intention is ‘directed at one whom he knows and recognises to be [B].  It is through unforeseen and unintended factors that the blow falls upon [C]’. It follows that A has intention in respect of C only if he foresaw the possibility of C’s death or, for culpable homicide, if C’s death was reasonably foreseeable.”[6]

Snyman (5th ed 2008) gives a similar explanation:

“What is the position if X intended to shoot Z but it subsequently transpires that he mistook his victim’s identity and in fact shot Y? Here his mistake did not relate to whether it was a human being he was killing, but to the identity of the human being. Murder is committed any time a person unlawfully and intentionally kills a human being, and not merely if a person kills that particular human being who, according to his conception of the facts, corresponds to the person he wanted to be the victim. For this reason X in this case is guilty of murder.”[7]

There can be no question that the facts of the Pistorius case disclose an error in objecto scenario – assuming that Pistorius did not know it was Steenkamp behind the door. He aimed at whoever (whatever object/body) was behind the door, fired, and struck and killed that object/body. He did not miss – which would have brought into play the rules relating to aberratio ictus.

It is worth noting that neither author (Burchell or Snyman) make any mention of the reason why A thinks that C is B. This is in line with our settled law, that takes no account of the reason why A makes his/her mistake. If (nominal/name) identity is irrelevant, the reason for any error as to identity cannot be relevant. The identity of the actual victim is irrelevant as is, necessarily, any reason for a mistake as to identity.

Both Masipa and Burchell[8] correctly observe that the facts of the Pistorius case disclose a scenario of error in objecto – in which the nominal/name identity of the victim is irrelevant.[9]

After noting that, in error in objecto scenarios, the identity of the actual victim is irrelevant, Masipa asks what she says is required by the test of dolus eventualis (legal intention): Did the accused foresee the possibility of killing the deceased. This is the wrong question for two reasons. As discussed below, the accused’s defence was that he did not intend to unlawfully kill anyone. This focus – the very basis of the defence of putative private defence – is lost. But, putting that aside, secondly, it is wrong because it deviates from, even contradicts, the recognition that the facts disclose an error in objecto scenario and that the identity of the victim is irrelevant. The question then, correcting also for the defence of putative private defence, should have been: did the accused foresee the possibility of unlawfully killing whoever was behind the door.

Again, it does not help to say this cannot be true because he thought the deceased was in the bedroom. This is the argument that Masipa seems to have finally settled on – and it is fatally flawed in logic. She says: the accused could not have foreseen the possibility of killing the deceased, or anyone else for that matter, because he thought the deceased was in the bedroom. The fact that the accused thought that the deceased was in the bedroom says nothing about what he thought about the presence of someone else in the toilet. Indeed, it is his defence that he believed someone else was in the toilet.

Burchell perpetuates this error in logic. Referring to his scenario in which he notes that it is irrelevant that A intends to kill B, but kills C, he argues that there can be no intention to kill C if A had excluded in his mind the possibility that the person he thinks is B, could be C. But this is the definition of an error in objecto scenario – let’s take this slowly: A intends to kill B. He does not intend to kill C, but B. He thinks that B (the human body) is, well, B. In thinking that B is B, he does not think that B is actually C. So thinking that B is B and not C, he has excluded in his mind, the possibility that B is C. This is the definition of an error in objecto scenario and there is no dispute that the identity of the actual victim is irrelevant. That is, it cannot help the accused that he thought that B (the human body) was B – where he did not think that B was C. Therefore, it cannot assist an accused who has excluded from his mind the possibility that B is C.

Importantly, the reason for any error as to identity is also irrelevant. It cannot help an accused who thinks that B is B because B is not C. Our law is clear, in error in objecto scenarios, (nominal/name) identity is irrelevant, and it remains irrelevant no matter what an accused’s reasons are for making a mistake as to the identity of his victim.

Masipa’s error was similar. In her view the accused could not be convicted of murder because the accused did not foresee that he could kill C (or B), because he thought C was in the bedroom. In that case, it leaves him thinking that B was in the toilet. As we know from the rules of error in objecto, it is no defence to say that he thought that B was B, and not C.

Some have argued that the charge of murder was somehow defective and restricted the prosecution to prove that Pistorius knew (or foresaw) that it was specifically Steenkamp behind the door. Phelps has argued that: “ … the problem started off with the way that the indictment was drafted. It focused closely on him shooting at Reeva Steenkamp and not on whoever was behind the door”.[10] Yet the indictment read as follows, and could not conceivably have said anything else:

COUNT 1 – MURDER …IN THAT … the accused did unlawfully and intentionally kill a person, to wit, REEVA STEENKAMP, a 29 year old female.

Given that the crime of murder is the unlawful intentional killing of another human being, it is difficult to understand how this restricted the prosecution to having to prove that the accused knew it was Steenkamp behind the door. They name the human being that he did unlawfully kill. On the settled law of error in objecto – where nominal/name identity is irrelevant and only object/body identity matters – all they had to argue was that Pistorius unlawfully and intentionally killed the body of Reeva Steenkamp. Reading in the technicalities, the indictment reads as follows: the accused unlawfully and intentionally killed the human body of Reeva Steenkamp, a 29 year old female. It is not necessary however to state the charge in this peculiar fashion, because the settled law of error in objecto requires that it be understood that way.

Putative Private Defence

It is true that the accused’s (original) defence was/is putative private defence.

Private defence excludes the unlawfulness of one’s conduct – only when one is objectively actually (in reality) under and unlawful attack that has commenced or is imminent. If so, one is entitled to use necessary and reasonable force against the attacker.

If, in hindsight, one was not actually under attack, one may not rely on private defence to render your conduct lawful – however, our law recognises that if one was mistaken in thinking one was under attack and entitled to use the extent of force one does resort to, one may raise the defence of putative private defence. If the accused makes this mistake, whether he is mistaken about the facts, or (as Burchell[11] correctly adds) the law (De Blom 1977 AD), the accused cannot be convicted of murder. This is because an accused who is mistaken in this way has no intention to act unlawfully. Putting it positively, the accused believes s/he is acting lawfully. The enquiry is entirely subjective – what did the accused actually think or foresee? It is, as indicated, a complete defence to murder.

Pistorius was not actually under attack, and therefore he could not rely on the defence of private defence. He could however, and did, rely on a defence of putative private defence. This defence was the original defence raised by Pistorius and persisted in by his defence team in the alternative. This defence required that Masipa asked whether the accused foresaw the possibility that his conduct could unlawfully kill.

The problem is that, after specifically stating that she was turning her attention to this defence (of putative private defence), Masipa erroneously states that the question is whether the accused foresaw that his conduct could kill [full stop]. As discussed, this is not the right question.

It does not make her decision right to say, as many commentators have,[12] that if Masipa had asked the right question, she would have (possibly) arrived at the same or right conclusion. We cannot know what conclusion she would have come to if she had asked a different question.

It also does not follow that – as Snyman is reported to argue[13] – a defence of putative private defence somehow excludes a scenario from also being an error in objecto. Putative private defence describes the accused mental state – that s/he was mistaken in believing that whoever X (a human body) happens to be, X is about to attack. An error in objecto is an error as to who X actually is – B or C. These mistakes may obviously be related: an accused may have mistakenly believed s/he was under attack because s/he believed that X was B (who posed a threat), whereas it transpires, X was actually C (who posed no threat). This is indeed what Pistorius is claiming – and it invokes the principles relating to putative private defence and error in objecto.

Conclusion

In conclusion, we have seen several attempts to justify Masipa’s judgment, all of which seem to fail. It does not make Masipa’s judgment right to pretend that her reasons were reasons that would make her judgement right: that she decided that the accused had not accepted the risk of killing the deceased, that she recognised putative private defence, or that she found that the accused only intended to injure the intended target. These were not her reasons and, however valid they may be, it doesn’t help to pretend that they were her reasons. It also doesn’t help to attempt to justify the distortion of our law on dolus indeterminatus and dolus eventualis applied to error in objecto and the logical error made by Masipa. The law on dolus indeterminatus and error in objecto is clear. Nominal/name identity is irrelevant – for that very reason it cannot help the accused if he thought that it was B behind the door; nor can it help an accused who argues that he thought that it was not C. The identity of whoever was behind the door remains irrelevant – and the indictment did not need to remind the judge that it is not relevant. Finally, there is no reason to ignore this clear law (that nominal/name identity is irrelevant) just because the scenario triggers the rules relating to both error in objecto and putative private defence. There appears to be nothing to save us from the inevitable conclusion that Masipa made errors of law and errors of logic.

 

***

 

[1] See B Cubane, “JUDGE MASIPA GOT IT RIGHT: Oscar Pistorius and the intention to kill” http://shar.es/1aWktC via @thelawthinker.

[2] Possibly even in the sense of object/body identity – although this may be controversial and is unnecessary for present purposes.

[3] Footnotes omitted; p 348.

[4] As Kelly Phelps is reported to argue (Martin Williams, quoting K Phelps “Why Oscar Judge was right”, The Citizen, (Tuesday 16 September 2014).

[5] This is very similar to the argument made by Burchell discussed below (under the heading “Error in Objecto”) – that someone (C) may be excluded from an error in objecto if A thinks that B is not C.

[6] Footnotes omitted; p 396.

[7] p 193.

[8] Such as J Burchell “Masip’a decision to acquit Oscar of murder justified” (http://m.bdlive.co.za/opinion/?articleId=339191).

[9] Snyman disagrees on the basis that the defence was one of putative private defence. As discussed below (under the heading “Putative Private Defence”), this does not exclude the scenario from being one of error in objecto.

[10] http://citizen.co.za/241517/legal-experts-mixed-reaction-pistorius-judgment.

[11] Such as J Burchell “Masip’a decision to acquit Oscar of murder justified” (http://m.bdlive.co.za/opinion/?articleId=339191).

[12] Such as J Burchell “Masip’a decision to acquit Oscar of murder justified” (http://m.bdlive.co.za/opinion/?articleId=339191); N Taitz (“Judge Masipa was right on Dolus and murder” http://bit.ly/1wGgNdm&#8221); Martin Williams, quoting K Phelps “Why Oscar Judge was right”, The Citizen, (Tuesday 16 September 2014); http://m.bdlive.co.za/opinion/?articleId=339191; Sonja Carstens, quoting CR Snyman “Legal question that divides” http://www.beeld.com/stemme/2014-09-19-regsvraag-wat-verdeel?vc=e9eccde605d8837f80b9fa6ccc527a34.

[13] Sonja Carstens, quoting CR Snyman “Legal question that divides” http://www.beeld.com/stemme/2014-09-19-regsvraag-wat-verdeel?vc=e9eccde605d8837f80b9fa6ccc527a34: “Die situasie staan in die reg bekend as error in objecto . But it is not in Oscar’s case happened. Maar dit is nie wat in Oscar se saak gebeur het nie. It was not error in objecto not. Dit was nie error in objecto nie. Jack in the case I would have realized I act unlawfully on. In die Koos-geval sou ek besef het ek tree wederregtelik op. “Pistorius did not realize he was acting unlawfully stops.“Pistorius het nie besef hy tree wederregtelik op nie. He thought he was acting in self-defense. Hy het gedink hy tree op in noodweer. The storms were not objectively present. Die noodweer was nie objektief aanwesig nie. This just in his mind, his subjective representation exists, “says Snyman. Dit het net in sy gedagtes, in sy subjektiewe voorstelling bestaan,” verduidelik Snyman.”

Many spectacular and sensational claims have been levelled at Oscar Pistorius in the media: that he has a bad temper, threated to break someone’s legs, is obsessed with firearms, fired a gun out of his sunroof, and another in a restaurant, was in illegal possession of ammunition and browsed pornographic websites on the night that he shot and killed Reeva Steenkamp. Presumably these claims – if proved – would tend to show that Oscar has a ‘bad character’. But there is a question that demands an answer: what does any of this matter? What would it matter if Pistorius can be shown to have a bad character? The answer is that it depends. During the plea explanation tendered by Pistorius, his defence team indicated that they would oppose the admissibility into evidence of ‘inadmissible’ character evidence as similar fact evidence. The admissibility and value of similar fact and character evidence is far from straightforward, but in light of the intense public interest in the Pistorius case, and the aspersions cast on his character, it seems necessary to attempt to deconstruct the law on this issue. Part of the complexity of trying to understand the place and admissibility of character and similar fact evidence in law is that it seems that the target is moving. When focused on similar fact evidence (concerning prior bad acts), it may seem that one is truly concerned with the character of the accused, and the opposite, when attempting to focus on character evidence, it may seem that one is truly concerned with similar fact evidence. These intuitions are, in my view, correct. That is because of the inextricable link between the two forms of evidence. Ordinarily, evidence of the disposition of a person is inadmissible because it is simply irrelevant. We know that good people do bad things, and bad people do good things. But there may be occasions on which, or people, in respect of which, sometimes, what they have done in the past, or the way they have done something, does seem to matter. In the classic case of R v Smith ((1915) 11 Cr App Rep 229) in which the accused was charged with murdering his wife – found dead in the bath. His defence was that she had suffered an epileptic seizure and drowned. There was evidence that he would benefit financially from his wife’s death. More damning though, was evidence that this had occurred on another two occasions: two other female partners had died in the bath and the accused stood to benefit from their deaths. This was all a terrible coincidence, or there was something about the accused that linked the incidents – that made it more likely that he had killed all three of them. This is indeed what the court found – the evidence of the other deaths made the claim of an accident in respect of the death of his wife implausible. It is at the point where we must say that there is something about the accused that makes it more likely that he is guilty that we are relying on evidence of disposition. I will argue also that, while ‘similar fact evidence’ is conventionally concerned with specific incidents from which inferences are sought to be drawn, and ‘character evidence’ is, perhaps not conventionally, but more realistically concerned with the disposition of an accused, the link between the two is that we can only draw valid inferences about the disposition of an accused from specific instances of prior conduct (similar fact evidence). When one is dealing with similar fact evidence – evidence of ‘prior bad acts’ – one is, in truth, dealing with whether this gives us some basis to draw inferences about the character – the disposition of the accused. For almost eternity (under Makin v Attorney General for New South Wales [1894] AC 57 (PC)), our law insisted that similar fact evidence was not admissible if it relied on aspersions on the character of the accused – if it operated upon the disposition of the accused. We seem now to be clear of this (DPP v Boardman [1975 AC 421 (HL); S v D 1991 (2) SACR 543 (A)) so that we no longer need to, nor should we (DT Zeffertt and AP Paizes The South African Law of Evidence 2nd ed (2009)), pretend that similar fact evidence is not, in truth, about disposition. Regarding character evidence, this is/was distinct on the basis that conventionally it referred exclusively to the general reputation of a witness – what the public generally thought of him or her. On this thinking, it was not evidence as to the disposition of the accused which may, in turn, be inferred from evidence of instances of improper conduct. This no longer appears to be the position (R v Malindi 1966 (4) SA 123 (PC) quoting with approval Stirland v Director of Public Prosecutions.[1944] AC 315). In essence then, both ‘bad character’ evidence and similar fact evidence seem to be concerned with instances of prior improper conduct of an accused from which inferences of an errant disposition can be inferred. The alleged misconduct of Pistorius regarding firearms and ammunition form the basis of several charges, in addition to the murder of Reeva Steenkamp which Pistorius is now facing. Importantly though, the question that I wish to address here is whether the evidence of his alleged misconduct regarding firearms and ammunition, and beyond that, of the other (character/dispositional) evidence against him, show that it is more likely true that he is guilty of the murder of Reeva Steenkamp. The general rule, in respect of both similar fact and character evidence, is that such evidence is inadmissible. The rationale is that it is simply irrelevant: its persuasive value is marginal at best and it is typically highly prejudicial – it triggers stereotypical thinking and wastes time and money, and causes the court to be drawn off point. It raises collateral issues which, in itself is problematic, but worse, an accused may be ill prepared to explain everything s/he has done in his/her life. However, there are several grounds on which evidence as to the ‘bad’ disposition of an accused can be exceptionally admitted. In terms of ‘character evidence’, at common law, the most prominent is where the accused leads evidence of his/her good character, the state may respond and present evidence of bad character – by cross-examining the accused or other witness or leading its own witnesses to testify as to the bad character of the accused. In addition, s 197 of the Criminal Procedure Act allows for the cross examination of accused person as to his bad character, (a) where s/he places his good character in issue (as under the common law), or impugns the character of a state witness; (b) gives evidence against a co-participant to the offence, (c) the charges relate to the possession of stolen property; or (d) proof of some prior bad act is admissible to show s/he is guilty on the current charge. It is worth repeating that this section relates only to the cross examination of the accused. The specific wording of the section is as follows: An accused who gives evidence at criminal proceedings shall not be asked or required to answer any question tending to show that he has committed or has been convicted of or has been charged with any offence other than the offence with which he is charged, or that he is of bad character, unless – (a) he or his legal representative asks any question of any witness with a view to establishing his own good character or he himself gives evidence of his own good character, or the nature or conduct of the defence is such as to involve imputation of the character of the complainant or any other witness for the prosecution; (b) he gives evidence against any other person charged with the same offence or an offence in respect of the same facts; (c) the proceedings against him are such as are described in section 240 or 241 [relating to possession of stolen property] and the notice under those sections has been given to him; or (d) the proof that he has committed or has been convicted of such other offence is admissible evidence to show that he is guilty of the offence with which he is charged. It is worth dwelling on the meaning and import of the final exception (197(d)). As mentioned, this effectively permits cross-examination as to some ‘prior bad act/s’ where this would be admissible to prove the current charge. This is an indirect incarnation of the rules relating to similar fact evidence – here making cross examination contingent on whether the similar fact rules would be satisfied. What is similar fact evidence, and when is it admissible? The law on similar fact evidence was governed for a long time by the judgement from the case of Makin (Makin v Attorney-General for New South Wales 1894 AC 57 (PC)). In Makin, the skeletal remains of a baby were found in the garden of a residence rented by the Makins. Their defence was that, while they conceded they had improperly disposed of the body of the baby, the baby had died of natural causes: they had not murdered the child. What made the case interesting, is that the prosecution sought to introduce evidence that the skeletal remains of other babies were discovered in other former residences of the Makins. The court was careful that evidence which tended to show that the accused were of bad character was inadmissible, but such evidence could be admitted if it in some other way disproved the Makin’s defence: ‘It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it is relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.’ Makin spawned a legacy of lawyers who thought about similar fact evidence in terms of categories of evidence, rather than degrees of relevance. Such evidence was admissible only if it qualified somehow, into a neat exceptional category, such as, did the evidence go to show that the conduct in question was designed and intentional, rather than a mistake, or did it somehow otherwise rebut a defence available to an accused. We have now developed, at least in theory, to the point at which our courts seem to appreciate that the true question is whether the evidence (of prior improper conduct) is relevant: whether it properly proves anything (DPP v Boardman [1975 AC 421 (HL); S v D 1991 (2) SACR 543 (A)) so that we no longer need to, nor should we (DT Zeffertt and AP Paizes The South African Law of Evidence 2nd ed (2009)) pretend that the disposition of the accused is not the real issue. While the position is that similar fact evidence is generally inadmissible – exceptions to this rule are also accepted. Our courts have previously insisted on some form of a link or nexus (R v Bond [1906] 2 KB 389 (CCR)) and currently, a ‘striking similarity’ between the prior improper conduct and the conduct in question (DPP v Boardman [1975 AC 421 (HL); S v D 1991 (2) SACR 543 (A)). Nevertheless, it seems that at issue is really only whether any sort of pattern can be discerned from the former conduct, that will sustain inferences being drawn to the conduct in question. It is not clear that our courts are yet comfortable with drawing inferences based on the disposition of the accused, but there appears to be no good reason to shy away from doing so where the disposition of the accused, by virtue of his prior conduct, is relevant (DT Zeffertt and AP Paizes The South African Law of Evidence 2nd ed (2009)). Thus, evidence as to specific prior improper conduct is admissible as ‘similar fact evidence’ where it would establish a pattern which reflects the disposition of the accused, from which the court could draw an inference as to his/her guilt. The topic of ‘character evidence’ does not carry this much further. Putting aside the specific statutory provisions relating to co-accused people and possession of stolen property, the rules regulating character evidence as character evidence allow for the leading of ‘bad character’ evidence or the cross-examination of the accused about his bad character if s/he pursues the line that s/he cannot be guilty because he is a good character. It also allows cross examination of the accused if s/he impugns the character of a state witness. Beyond that the rules governing character evidence as character evidence allow for the cross examination of the accused to establish what would be permitted by the rules regarding similar fact evidence. The bottom line is that if evidence of prior improper conduct by an accused would tend to properly (without, for instance, operating on stereotypes and without wasting time) show that the accused is more likely guilty, the evidence is relevant and admissible. How much weight it is given in the final analysis is another matter entirely. It is worth considering whether this is the case for Pistorius. Presuming that the state can prove allegations of prior improper conduct, would the evidence of a bad temper, a threat to break someone’s legs, having fired a gun out of his sunroof, and another in a restaurant, that he was in illegal possession of ammunition and viewed pornographic material make it more likely true that he intentionally and unlawfully shot and killed Reeva Steenkamp? This is not evidence that he shot and killed several previous girlfriends, or even evidence of repeated domestic violence. I don’t see a court accepting this evidence as establishing any sort of pattern on the basis of which it would be prepared to infer that Pistorius intended to kill Reeva Steenkamp. Of course, if the state were to produce evidence of domestic violence, then valid inferences as to his character (disposition) and ultimate guilt may be drawn. Our ability to discern patterns from complex information make us an intelligent species. But we must be careful that just because the identification of patterns help us understand our world, does not mean the world is full of patterns.  *I wish to thank Professor Andrew Paizes (co-author of Zeffertt and Paizes, The South African Law of Evidence) for his helpful comments on an earlier draft. I have amended this post in line with his suggestions. Nevertheless, any mistakes remain entirely mine.

In order to understand the defence of Oscar Pistorius to the charge of murder against him, it is necessary to have reference to the general requirements of criminal liability (see the overview on this site). In particular, one must have reference to the requirement that the fault requirement of criminal liability must extend or relate to all the essential requirements of the unlawful conduct requirement. In the case of murder, the fault requirement is intention and the unlawful conduct requirement is the ‘unlawful killing of another human being’. It is worth observing that intention is an entirely subjective enquiry – it turns on the actual subjective mental state of the accused. One can only be convicted of murder in South Africa, if you intend not only to kill another human being, but if you intend to unlawfully kill another human being. This is a well-entrenched defence in South African law.

One must be careful though that there are subtle differences between claiming that one has not acted unlawfully, and claiming not to have realised one was acting unlawfully.

A claim that one did not act unlawfully is, of course, a claim to have acted lawfully. One may make such a claim if one raises a ground of justification. Self or private defence is the most well-known ground of justification. To succeed with a claim of self or private defence, one must satisfy a number of specific requirements. These requirements can be divided into those which relate to the attack, and those that relate to the response. The requirements of the attack are as follows:

1)      One must be under an unlawful attack;

2)      Which has commenced or is imminent;

3)      Against a legally protected interest – such as life, bodily integrity, or property (of significant value), or the life, bodily integrity, or property of another.

The requirements of the defence are as follows:

4)      Force used in response must be directed at the attacker (and no-one else);

5)      Force must be necessary;

6)      The extent of force must be necessary and reasonable.

If one satisfies these requirements, one’s conduct is lawful and one escapes liability. If one does not satisfy all of these requirements one’s conduct is unlawful. This is, of course, the position for Pistorius – who has conceded as much. There was no unlawful attack upon him or Reeva.

However, one is only ultimately liable, if, as required (see overview under ‘Fault’), one’s fault (intention for murder) extends or relates to all the requirements of the unlawful conduct. If one did not intend to act unlawfully, one has a valid defence. Thus – and this is what Pistorius appears to be claiming – if one mistakenly believes that one was acting lawfully, in self/private defence, one has a valid and complete defence. Here is the catch – actually, there are two.

Firstly, Pistorius will have to convince a court that he genuinely believed that he was acting in self/private defence. The problem he may face is that our law takes a wide view of ‘intention’ – it regards the foresight of a possibility and reckless persistence in the face of that risk, as intention. An accused who foresees the possibility that one or more of the requirements of private defence may not be satisfied, who reconciles to that risk and persists despite the risk, will be held to have intention in our law. Not only would such an accused have acted unlawfully, but s/he will have intended to act unlawfully – merely by the foresight of a possibility that one of the requirements of self/private defence may not be satisfied, and to have persisted despite this risk. For Pistorius, this means that, having conceded that he acted unlawfully, if the state can show that he foresaw the possibility (and reconciled himself to the risk) that he was not under attack, that any supposed attack had not actually commenced and was not imminent, or that no legally protected interest was truly under threat, he may be regarded as having intended to act unlawfully and can be convicted of murder. Alternatively, even if Pistorius was genuinely mistaken in respect of all of the requirements of the attack, he may also be convicted of murder if he foresaw the possibility that one of the requirements of the response may not have been satisfied. He can be convicted of murder if the state can show that he foresaw the possibility (and reconciled himself to that risk) that he was not acting against the supposed attacker, that force was not necessary, or that the extent of force used was not necessary and reasonable.

The second catch is that even if Pistorius succeeds in his defence (of mistake as to unlawfulness) against the murder charge, the next automatic question will be whether this mistake was a reasonable one. This is the question of culpable homicide. It is judged objectively – whereas intention is judged subjectively.  The objective standard of the reasonable person is the basis on which our courts judge negligence. At its essence it is a hypothetical comparison of the actual conduct of the accused against what a reasonable person, in the circumstances of the accused, would have done. If there is any deviation on the part of an accused from what the reasonable person would have done, the accused will be judged to have acted negligently. It is worth noting that our law is only prepared to take account of the immediate external circumstances of an accused – and to hypothetically place the reasonable person in these circumstances. Our law has steadfastly refused to take account of any subjective factors peculiar to an accused, including any disability that the accused suffers with. This has been controversial, but it has been a line from which our courts have not wavered.  If the reasonable person would not have made the mistake Pistorius claims to have made, even if the court accepts that Pistorius made this mistake, he may be convicted of culpable homicide.

If I shoot a gun at a particular person, but I miss, the law recognises that the bullet may easily come to rest in a wall, a tree, or fall harmlessly to the ground somewhere. It could also, of course, strike another person – and this is where things get interesting. This is known in SA law as a scenario of aberratio ictus (going astray of the blow). Our law used to take the view that this was no defence – you still killed a human being. It used to do this by “transferring intent” from the intended victim, to the actual victim. But we have now shifted to the position that recognises that, if you miss your target (although you are liable for attempted murder in respect of your intended victim), whether you are liable for murder, if the bullet happens to strike another person and kill him/her, must depend on whether you had intention (in law, at least foresight) of this prospect.

This is all very different from scenarios of “error in objecto”. It doesn’t matter if an accused intended to kill one person (say, Bill), but killed another instead (say, Jake) – at least not in the sense that the identity of the victim matters. Thus, an accused who intends to kill a particular human body, and kills that human body, incurs liability for murder (assuming capacity and unlawfulness). The mistake involved (“error in objecto”) where one human body is mistaken for another, is an immaterial/inessential error – that is, it does not affect one’s liability. An error in objecto may be material where one shoots at what one thinks is a scarecrow, say, but it transpires that the scarecrow was a human being. This would be an essential/material error and one could not be convicted of murder, which requires the intentional unlawful killing of another human being – one must intend to kill a human being.

The problem is that it is easy to confuse an aberatio ictus (where one misses one’s intended victim and someone else is killed), with the scenario of an inessential error (in objecto) where one shoots at and kill a particular person. The fundamental difference is that in the former (aberatio ictus) there are actually two people/victims, and you kill a person you may not intend to kill. In the second scenario of the inessential error (in objecto) there is only one person/victim and you kill that human being – the human being you intend to kill.

Oscar did not miss his target. He fired at and killed whoever was behind the door. It is therefore no a case of aberatio ictus. It is, at best, an immaterial/inessential error (in objecto) – no defence. Instead, his defence, at least his original defence, is that he did not intend to kill whoever was behind the door UNLAWFULLY. This is a recognised defence. Oscar only needs to raise in the mind of the Court a reasonable possibility that he made this mistake to escape a murder conviction.