Archive for the ‘Uncategorized’ Category

PhD Thesis: Responsible Mind

Posted: August 8, 2017 in Uncategorized

Section 4 of the Protection of Information Act 84 of 1982:

There is something about the nature of private defence that is perhaps necessary for us, as fathers and mothers to be reminded of – given the current state of lawlessness and this risks our children face. 

Private defence is available when “public defence” is unavailable. This follows quite straightforwardly form the underlying basis for private defence: the social contract. Under the social contract, private citizens have given up their rights – in favour of the state – to the use of force to protect their rights, or to endure that justice is done when rights have been infringed. It follows that when the state is unavailable to protect rights, the individual citizen may take the law (back) into his/her own hands.

One must be careful to construe this right to take the law back into one’s own hands. In order to give expression to this right, the law has set strict requirements for when this may be done, and has limited the extent of force that may be resorted to.

The requirements are as follows:

There must be a commended or imminent unlawful attack upon a legally protected right. All rights are recognised, including the right to dignity and the right to property. However, the extent of force used will be restricted according to the objective value of the interest in question. As far as property is concerned, as our law stands (S v Van Wyk 1967 AD), one may resort to the use of force to defend one’s property, but the right is limited according to the value of the property. This is controversial and we may expect that the Constitutional Court may restrict this right even further. My sense is that the Constitutional Court may restrict the right to use force in protection of property to the protection of property required to support other rights in the bill of rights, such as shelter, life, and to work.

If these requirements are satusfied, then a person (any person – as will be discussed below) may resort to the use of force – limited as follows:

The force must be directed at the person infringing the right or rights in question. It must be necessary to resort to force to end the attack. Then, finally – and crucially, it must be reasonably, given all the circumstances. This requires an all encompassing inquiry that takes account of the nature of the attack, the nature of the interests infringed or imminently to be infringed, the time of day, the relative strengths of the victim and attacker. You may not use lethal force to take back a sweet from a bully, even if that would be the only way to retrieve the sweet. Equally, you cannot kill someone for slapping you. But if your life or body integrity is at risk, you may kill the attacker.

Now, what if someone kidnaps your 13 years old daughter and the police refuse or fail to assist in freeing her form the kidnappers – even where they know whether she is being held. In my view, this would give rise to the right to the use of force to vindicate the rights infringed.

I have alluded to the fact that one may act on behalf of another. This is so because of the nature of private defence. It’s is what is known as a ground of justification. When one acts in private defence, your conduct is justified and, in effect, the right thing to do. As such, it is universal – anyone may act where there is a ground of justification because anyone may act in private defence. Anyone may act in private defence because doing so is the right thing to do.

I am a father. I am not in favour of vigilantelism. But if someone took one of my daughters, I am guessing, but I expect the police will need to arrest me first.

I hope that I am able to exercise self control in the circumstances though, and that I do the right thing – to go to the police and ask for help. But if they fail to help – and if I knew where my daughter was being held, I believe that the law would permit me to do what is necessary to free her.

I expect that I would do so, and in doing so, I would hope that all other fathers and mothers would join me in retrieving my daughter and I believe we should all do so when one of our daughters is taken. For what it’s worth, I’d be there.

Judge Vally’s order, that President Zuma must provide the record of his reasons, is known as an interlocutory ruling. It doesn’t decide the main dispute – only a procedural step along the way.

Normally, these cannot be appealed – because litigation would be endless if every ruling were appealable and everything was appealed.

But our law in both the common law (court judgments) and in the High Court rules, seems to provide for it – in exceptional circumstances. Ultimately the test will be what is in the interests of justice, and some of the considerations are whether a significant portion of the dispute has been decided, would irreparable harm be done, and is the rulings truly final. Arguably, given the importance of the matter, Zuma may succeed in persuading a court that this ruling perhaps goes sufficiently deep into to the issue, would be irreparable if observed, and is final on this issue, would case irreparable harm, and it cannot be altered. So Zuma may be able to overcome the hurdle that Judge Vally’s ruling is only interlocutory in nature.

That does not mean he will be granted leave to appeal – that is another hurdle and the ordinary rules apply there: especially that there must be reasonable prospects of success. And yes, if Zuma is denied leave by the Pretoria High Court, he may apply to the SCA – and so it goes.
But what of the effect of Judge Vally’s order? For many, this is the real question – as it is for me.
Here one must consult the almost unintelligible rule 18 of the High Court rules.

Section 18(2) provides that if one applies for leave to appeal or appeals an interlocutory ruling, the effect of the ruling is not suspended – unless the applicant can show exceptional circumstances, which include that the applicant will suffer irreparable harm. The point is that Judge Vally’s order remains in force as the default and time is running – tomorrow (at the time of writing) is the deadline whether you have applied for leave to appeal or not. There could be and probably will be a condonation application – a please forgive me for being late with my homework. But crucially, the clock is ticking. 

To stop the clock, the burden will be on Zuma to persuade the Pretoria High Court:

1) to Grant him leave to appeal; AND

2) that there are these exceptional circumstances that require that the court suspend the order that he must provide the record of his decision. 

If Zuma is successful, the court will order that the ruling that he must disclose the record is suspended. But if this happens, it triggers in the rules an almost unbelievable consequence. Under rules 18(4), the moment the suspension order is granted, suspending the effect of the original ruling, that order to suspend the effect of the ruling, is itself suspended. To be clear, even if Zuma is successful in persuading the High Court to grant leave to appeal and to suspend the ruling that he must disclose the record, that order is suspended and he must still provide the record. The order of suspension will be suspended, until the appeal is decided. 

Unbelievable? Yes. Does the law sometimes get it right, even by committing a few compensating wrongs?

– James Grant 

10 May 2017

On 12 April 2017 the North Gauteng (Pretoria) High Court granted 2 orders:

  1. That Ntlemeza’s appointment as the Head of the Hawks is invalid (the main order); and
  2. That the order (that the appointment is invalid) is effective immediately (the order-effective order).

In the absence of this order-effective order, an appeal by Ntlemeza would suspend the main order – in terms of s 18(1) of the Superior Courts Act. The section reads as follows:

“Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.”

However, the applicants persuaded the Court that there were exceptional circumstances so that the court ordered “otherwise”: that the main order (that Ntlemeza’s appointment was invalid) would be effective even if appealed.

However, when a Court orders “otherwise”, it triggers, in turn, an automatic right of appeal, and – almost unbelievably – an automatic suspension of the order that the main order is not to be suspended, as follows. Section 18(4) states:

If a court orders otherwise, as contemplated in subsection (1)—

(i)  the court must immediately record its reasons for doing so;

(ii)  the aggrieved party has an automatic right of appeal to the next highest court;

(iii)  the court hearing such an appeal must deal with it as a matter of extreme urgency; and

(iv)  such order will be automatically suspended, pending the outcome of such appeal.

So, to be as clear as possible, if Ntlemeza has properly lodged his appeal, the order to suspend the order invalidating his appointment as Hawk’s Head, is suspended. Bottom line, right now, General Ntlemeza is the Head of the Hawks.

James Grant

24 April 2017

This is the text of the law in issue:

S 18.Superior Courts Act

The High Court Order:

Under Construction

Posted: April 22, 2017 in Uncategorized

Apologies – this site is under construction.

All existing chapters are being updated into document frames embedded in the website – for easy reading, printing and downloading.
Also, each existing chapter will have audio added.
In addition, 5 new chapters will be added on the law of criminal capacity.These new chapters will also be embedded in document frames with audio.

INNOVATION: Audio introduced

Posted: April 18, 2017 in Uncategorized

New chapters – from chapter 12 – will be posted with the innovation of audio accompanying the text. Readers will be able to listen as they read, or to simply listen instead. Over time, all chapters will be upgraded to include audio.

Free online Criminal Law textbook

Posted: February 27, 2017 in Uncategorized

I am pleased to announce that, now that I am lecturing again at Wits Law School, the online textbook – on the fundamental principles of criminal law – is back on track and I will be posting new lectures/chapters on a regular basis.

SARS Wars and Kidnapping

Posted: October 28, 2016 in Uncategorized

From the footage I have seen it seems as if someone blocks Vlok Symington’s attempts to leave the room at least twice. That would satisfy the conduct requirement for kidnapping. The next question is whether they had any lawful grounds? This is a value judgement. Unlikely a court will accept that the interests in retrieving an email, if mistaken sent, can justify detaining a person. Did those responsible have the required intention? Did they foresee that they were restricting his freedom of movement  – very likely, yes. Did they foresee that they may not have valid authority to detain him and did they foresee that they may be committing a crime? In light of the audio, from the video and the emergency call, which those present must have heard – that he was complaining he was being held hostage – it is entirely possible that some of those responsible had the necessary intention and that kidnapping was indeed committed.

If someone was on the phone issuing orders to detain him, then whatever those acting on those orders did, the person issuing the orders did. If it was Tom Moyane on the phone issuing instructions to detain Symington then Moyane did, in law, whatever those acting on those orders did, as if Moyane did it himself. Questions of intention remain to be answered independently (subjectively) for anyone issuing orders – its the question of what s/he foresaw as possible. Arguably, s/he would (presumably) have had similar foresights to those in the room.

Imagine the accused was not Pravin Gordhan, but, one Des who was CEO of a large multinational company. Imagine he was friends with a certain Tom, in upper middle management, who also worked for the company and that the two liked to go fishing at the sea. Imagine they dreamt of owning a small cottage at the sea from where they could spend long days fishing. Imagine that they had found the perfect cottage for sale – an urgent sale – for the sort of money that only Tom could obtain if he could get access to his retirement fund. Imagine that Tom was due to retire in two years and stood to suffer a significant penalty if he retired early and also that Tom couldn’t really afford to retire early. Imagine Des makes some enquiries and discovers that he has the discretion to authorise an early retirement and a re-employment – all if justified for operational purposes. He discovers that if he authorises the early retirement, he can also authorise that the company must pay the penalty. Imagine Des thinks: ‘no one can know what I was actually thinking – everyone trusts me implicitly – no one will question me’ – remember – imagine. Now, what if Des and Tom conspire and Des goes ahead? Des misrepresents that he is authorising the early retirement and then the subsequent re-employment for operational purposes. Tom’s pension is paid out, the company pays the penalty, and soon thereafter, Tom is re-employed. Now, imagine Des had confided in his wife, who objects to his now frequent fishing trips. He institutes for divorce and she goes to speak to one Shaun.

In this scenario, assuming it could all be proved, in my view, there could well be a conviction for fraud or theft. It all depends as the brilliant Prof Andrew Paizes (coauthor of the SA Law of Evidence) always wisely reminded me. It all depends on what the evidence is and on what the evidence can show Des was thinking.

Do I believe this applies to Pravin Gordhan? No, but then, I have to admit, I am biased. Nevertheless, I think it’s important that we realise that there is a possible scenario in which even someone of the moral authority of Pravin Gordhan could conceivable have committed the offences charged.

If we recognise this, then we are able to focus on and demand the sort of evidence that is, at least, relevant – both evidence which may incriminate and that which may exculpate.

Tomorrow’s Supreme Court of Appeal judgement in the Pistorius appeal is crucially important for South African law of evidence and criminal law.
It will decide whether the State can appeal on a question of law even if the trial court convicted the accused on a competent verdict (such as culpable homicide when the main charge was/is murder). The decision in the 1982 case of S v Seekoei (AD) precludes such an appeal and before the SCA addresses any issue of any substance, it will have to decide whether Seekoei was wrong. Only if it decides that Seekoei was indeed wrong, can it engage with any of the substantive questions before it.
Assuming it decides Seekoei was wrong, we should expect clarification on the following issues:
  1. How circumstantial evidence must be dealt with – whether a piece of circumstantial evidence can ever be ignored and, if so, when.
  2. The distinction between questions of fact as opposed to questions of law. This distinction is not easy particularly when it relates to rules that govern what a court may do – that is, in respect of rules evidence and procedure. It may be helpful (following decisions such as Basson CC) to regard questions of fact as an attempt to identify a state of reality – for instance, whether someone did, or thought something. Questions of law pertain to the standard of conduct that one must observe – what it is that a person must not do or must do. This seems to apply equally to procedural issues, such as what a court must and must not permit in proceedings before it.
  3. It can also be expected that the court will define and explain the difference between a defence of involuntariness as opposed to one of putative (mistaken) private/self defence. If the court follows the decision in De Oliviera, it is likely to distinguish the two on the basis of whether, for putative private defence, the accused was thinking, but mistaken in his thinking; whereas, for involuntariness, the accused was not thinking at all, or, at least, his thoughts did not direct his conduct.
  4. It will also clarify the concept of dolus eventualis, in particular, as applied to scenarios of error in objecto and scenarios of putative private/self defence. In other words, the SCA will clarify the requirements for an accused to escape a conviction of murder (or any crime requiring intention), in a scenario in which s/he was mistaken both as to the identity of the actual victim and as to whether s/he was actually entitled to kill that person.
  5. We will hear whether the court confirms that, a defence of putative private defence must fail, when dolus eventualis is sufficient for a finding of intention (as it is for murder), if the accused had foresight of the possibility, at the critical time, that any of the requirements of private/self defence may not be have been satisfied. The significance is that the true defence (that is, not the “putative” mistaken defence), requires, for the defence to succeed, that:
    1. The accused was under an unlawful attack;
    2. That the attack had commenced or was imminent;
    3. That the attack was directed at an interest of the accused which he was entitled to defend;
    4. That force was necessary to repel the attack;
    5. That no more force than was necessary to avert the attack was used, and that in any event, such force was reasonable given the circumstances; and
    6. The force used was directed at the attacker.
A defence of putative private defence is that, while there was, in reality, no valid claim of private defence, the accused was mistaken so that s/he believed that all requirements were satisfied.
We should expect the SCA to confirm that the defence of putative private defence must fail if there is dolus eventualis (forsight of the possibility and reckless persistence) relating to any of these requirements. In other words, that the defence must fail if the accused foresaw the possibility (and persisted nevertheless), that any of the requirements may not have been met. Thus, the defence must fail if the accused foresaw the possibility of all or of any of the following:
  1. That s/he was not under attack;
  2. That no attack had commenced or was imminent;
  3. That there was no attack on a legally protected interest that s/he was entitled to defend;
  4. That no force was necessary;
  5. That the force used was excessive in the circumstances; or
  6. The force used was not directed at the attacker.

If the court confirms this, the claim of putative private defence must fail.

There is alot at stake in the Pistorius appeal decision. Anyone interested in criminal law and procedure and the law of evidence will do well to pay close attention to this judgement.

Euthanasia or assisted suicide is arguably, now, both legal and illegal in South Africa. Here’s an attempt to explain. Three preliminary points are required.

Firstly, it’s important to understand that what is at issue is whether killing in euthanasia is unlawful (just like for self/private defence). It is a question of unlawfulness because the issue is whether the consent given to be killed is valid and recognised in our law.

Secondly, only decisions of our courts that are consistent with the Constitution actually reflect what the law is. Any decision inconsistent with the Constitution is invalid and not law. The importance of the Constitutional Court is that it has the last say on what it is that the Constitution permits or requires. This has implication for what the law is, even before the Constitutional Court decides what it is. The law is whatever the Constitution permits or requires ever since the coming into effect of the Constitution. This is crucial and bears repeating. Since the coming into effect of the Constitution, our law has been whatever the Constitution permits or requires, no matter what any legislation or any Court (other than the Constitutional Court) says it is.

Thirdly, the question raised in cases of euthanasia or assisted suicide is judged by the “legal convictions of the community”, now, as informed by the values in the Constitution (Carmichele [2001] ZACC 22).

Currently our law is in a state of conflict. There are several old Appellate Division (AD), now known as the Supreme Court of Appeal (SCA), decisions that euthanasia is unlawful (Robinson 1968; Grotjohn 1970).

There is also the case – progressive for its time – of Clarke v Hurst (1992 D) and now, that of Stransham-Ford in the Gauteng North High Court (of 29 April 2015), holding that euthanasia is lawful. Both are Provincial Division decisions.

To complete the picture, it must be mentioned that the Law Commission has recommended (in 1999) that passive euthanasia/assisted suicide be legalised – in terms of which it will be lawful to withhold care or medication. However, the Law Commission took no position on the issue of active euthanasia/assisted suicide – where one actively does something, such as administer a lethal dose of a drug, to hasten death. The status of this commission report is that it has gone nowhere and certainly doesn’t have the status of law. It does however give us a glimpse that the law commission is leaning in favour of the recognition of euthanasia/assisted suicide.

Returning to the court decisions we have the Provincial Division decisions which are in conflict with the AD/SCA decisions. Although AD/SCA decisions ordinarily override Provincial decisions, as indicated above, only decisions that are consistent with the Constitution actually reflect the law.
This leads to the obvious question here: which decisions reflect the Constitution? For this reason we need, at the very least, an appeal to the SCA to resolve the conflict between its own old decisions and the Provincial division decisions, but ultimately we need the Constitutional Court to tell us what the Constitution says. An appeal against the decision in Stransham-Ford’s case is therefore to be welcomed. It will drive the issue towards the Constitutional Court.

Until then, and despite the recent decision in the case of Stransham-Ford, no one can claim to know whether euthanasia or assisted suicide is lawful or not. It leaves those who are terminally ill, who are suffering and who want to die, their families and the doctors who want to help, in a state of uncertainty that can only cause more suffering.

In the meantime the inevitable question persists – what is the position in our law? I can’t answer that. This is for the Constitutional Court to say. I can only guess that it will give prominence to an individual’s right to dignity and to die with dignity.

What I can say in the meantime is what this state of uncertainty does for criminal liability. It is worth considering the possibilities given the importance of this question. There are, of course, two possible outcomes: that euthanasia or assisted suicide is either: 1) lawful; or 2) unlawful.
If the Constitutional Court finds that euthanasia/assisted suicide is lawful, it will mean that it was always lawful, since the inception of the Constitution. In this scenario, there can be no liability – no murder or culpable homicide conviction, even if the conduct is/was committed prior to the Constitutional Court decision saying so. There is an interesting scenario, still within the parameters of it being lawful, in which a person proceeds on the mistaken though firmly held belief that it is unlawful, although it is not. This is what is known as an attempt at the legally impossible, and also attracts no liability.

The second alternative, in which the Constitutional Court declares that euthanasia/assisted suicide is unlawful, will mean that it remained unlawful despite the inception of the Constitution.
I expect some may regard this as a silly proposition given that “ignorance of the law is no excuse”. However, in South Africa, since 1977 this is not our law (S v De Blom AD). A mistake of law is indeed a defence. It would undermine the requirement of intention for murder, and, probably, also the requirement of negligence for culpable homicide. To be clear, the effect of a mistake is to undermine the fault requirement of murder or culpable homicide.

If someone proceeded to kill another in circumstances that one can describe as euthanasia/assisted suicide, but knew/believed that it was unlawful, s/he could be convicted of murder.
However, if someone were to believe – mistakenly on this scenario – that euthanasia/assisted suicide was/is lawful, and was to proceed on this basis, s/he cannot be convicted of murder. This follows from simple and unquestioned principles of mistake in our law. The more difficult question arises though whether this person could be convicted of culpable homicide. This is the question whether making such a mistake is reasonable – could the reasonable person make this mistake? Remember, unlike intention, which is a subjective enquiry (what was the accused actually thinking), negligence is an objective enquiry. Negligence is concerned, not with what the accused did think, but with what s/he should have thought and done. The bottom line is that an accused is regarded as knowing only as much as would be reasonable for him/her to know.

In cases where the issue has been an error of law our Courts have distinguished between complete lay people and those who engage in a particular sphere of activity.  Those who engage in a sphere of activity are expected to know the law pertaining to that sphere of activity (De Blom 1977 AD; Du Toit 1981 C). Thus, a builder is expected to know the law and regulations relating to building, a motorist is expected to know the law and regulations relating to his or her mode of transport). This follows from the notion that the reasonable person would know the law pertaining to the sphere of activity in which s/he is engaged. It would probably be considered reasonable for a lay person to think that, given the right to dignity in the Constitution, or following the decision in Stransham-Ford, euthanasia/assisted suicide is now legal in South Africa.

The standard required of Doctors is going to be higher. They will be expected to know the law pertaining to their “sphere of activity”. In the circumstances what can the reasonable Doctor be expected to know? The law on the issue is unclear and we are waiting for the SCA and ultimately the Constitutional Court to interpret the Constitution and declare the law (and what it has been since the inception of the Constitution). We may guess that the Constitutional Court will probably recognise the right to die with dignity, but we have no certainty until they decide. What should a Doctor do? Ultimately the question is going to be this: would a reasonable Doctor foresee the significant possibility that the Constitutional Court may find that euthanasia/assisted suicide is unlawful? Is there a significant possibility that the Constitutional Court may find that it is unlawful? Regrettably, as much as I think the Constitutional Court should and will find that euthanasia/assisted suicide is lawful, there remains a chance that it will not – that it may find that it is unlawful. I say regrettably because I have to acknowledge a degree of uncertainty here that is unacceptable. If this is so, that there is a possibility that the Constitutional Court would find that euthanasia /assisted suicide is unlawful, it will not be a stretch for a Court to find that a reasonable doctor would have foreseen this prospect and would not have assisted. Regrettably again, given the uncertainty, I expect this is a basis upon which Doctors may pause in anticipation of the desperately needed clarity on this issue. However, much as I must acknowledge the possibility that the Constitutional Court may find euthanasia/assisted suicide to be unlawful, I doubt it could amount to a significant risk. The only case (that of Stransham-Ford) that has considered this question in light of the Constitution has concluded that the Constitution permits euthanasia/assisted suicide as lawful. Indeed, even pre-constitutionally, but as we approached our new Constitutional dispensation in 1992, the court in Clarke v Hurst found that the “legal convictions of the community”, the all-important test for unlawfulness, require that euthanasia/assisted suicide is lawful. Given these two judgements, that the AD/SCA decisions are old (1968 & 1970) and certainly pre-constitutional, and that the only other indication we have is from the law commission apparently in favour of euthanasia, it would seem entirely reasonable for a Doctor to believe that when this does finally reach the Constitutional Court, that Court will find that it is lawful. What would a reasonable Doctor make of the uncertainty? I expect a reasonable Doctor would acknowledge the uncertainty, would decry the uncertainty, but would, in my view, regard the risk that the Constitutional Court could find that euthanasia is unlawful as too remote and ultimately insignificant. Unfortunately, this is only, and can only be, a best guess.

In summary then, despite the conflicting court decisions in our law, whether euthanasia/assited suicide is unlawful or not is to be determined by reference to the Constitution. If anyone (lay person or Doctor) were to assist another (who is terminally ill and suffering) to die, no liability can attach to that conduct were the Constitutional Court to declare that such conduct is lawful, and always was (since the inception of the Constitution). If the Constitutional Court were to find however that such conduct remained unlawful despite the inception of the constitution, the fault requirement of the crimes of murder and culpable homicide may offer a defence to both lay persons and Doctors. As indicated, Doctors bear a higher burden than lay people in respect of the law and regulations applicable to the practice of medicine. But ultimately it must be recognised that right now, no one can claim to know what the law is and all we have to go on are the indications in the law commission proposal and the two provincial division decisions in favour of euthanasia being lawful.

Ultimately, and assuming whoever assists another to commit suicide genuinely believes that it is the right thing to do and that this belief will be vindicated by the Constitutional Court, s/he cannot incur liability for murder, no matter what the Constitutional Court decides. Assuming it is reasonable to hold this view, as I suspect it is, no one can be convicted of culpable homicide for doing so, again, no matter what the Constitutional Court decides.

These conclusions are by no means an attempt to reduce the importance of a decision on this from the Constitutional Court. It recognises that that decision is desperately needed and ultimately all important. In the meantime though, for those who are suffering, with no prospect of recovery, for their families and loved ones, and for the Doctors who want to help, I hope this answers some questions.

– By James Grant (@JamesGrantZA)

___________________________

* In honour of Robin Stransham-Ford and my mother. I am grateful to Professor Marius Pieterse of Wits University for his guidance on the constitutional law discussed here. All errors remain, naturally, all mine.

** This discussion is an attempt to answer some abstract questions that arise given the apparent state of legal conflict. It’s purpose is to provide a framework within which questions relating to the specific circumstances of any particular person may be considered. It is not encouragement or a licence to kill anyone. It cannot be regarded as legal advice which must be sought in every individual scenario in order for the specific circumstances to be considered and advised upon.

My apologies that I have made no contribution to this site for some time. I am currently doing my Advocate’s pupillage at the Johannesburg Bar and undergoing intense training that permits me little to no time to add to this site. I do intend to continue with the online textbook once I am through pupillage and hope, in the meantime, to post the odd note if I can find the time. In the meantime, I apologise for the break in transmission.

– James

The Seekoie Hurdle

Posted: October 29, 2014 in Uncategorized

Translated from the Beeld (29 Oct 2014), available at: Seekoei.Beeld

Story by Marida Fitzpatrick, translated (in a flash) by Darron West.

Several attempts have been made to justify the decision of Judge Masipa to acquit Oscar Pistorius of the murder of Reeva Steenkamp. Regrettably, in my view, none of them are successful.

Burchell* falls into the same wishful thinking errors of Taitz and Cibane, and logical error as Masipa.

Burchell (and Taitz**) observe, correctly, that the (original) Pistorius defence was putative private defence. This is the defence that one mistakenly believes that one is entitled to act in private defence. If the accused makes this mistake, whether he is mistaken about the facts, or (as Burchell 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 forsee. It is, as indicated, a complete defence to murder. 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), she erroneously states that the question is whether the accused foresaw that his conduct could kill [fullstop]. As discussed, this is not the right question.

It does not make her decision right to say, as Taitz and Burchell argue, 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 another question.

Then there’s the problem of error in objecto and dolus eventualis. Error in objecto describes a scenario in which, as Burchell explains: “In terms of this rule, if A intends to kill B and shoots and kills C, whom he mistakenly believes to be B, then A’s mistake as to the precise identity of his victim is irrelevant and he could be liable for the murder of C.”

It is worth noting that there is no 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 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 correctly observe that the facts of the Pistorius case disclose a scenario of error in objecto – in which the identity of the victim is irrelevant.

It is notable also that the defence never argued that the accused had not intended to kill – but only, perhaps, at most, intended to injure. This too 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.

It is possibly also worth mentioning that her judgement did not turn on a finding – that was crucial in the Humphrey’s case (2013 SCA) – that, although the accused did forsee the possibility of killing whoever was behind the door, he did not accept that risk.*** Again, that would have been 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.

Returning to what Masipa actually said, and how she actually reasoned. After noting that, in error in objecto scenarios, the identity of the actual victim is irrelevant, she asks what she says is required by the test of dolus eventualis (legal intention): Did the accused forsee the possibility of killing the deceased. This is the wrong question for two reasons. As discussed above, 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 forseen the possibility of killing the deceased, or anyone else for that matter, becuase 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 errror 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 secanrios, 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 forsee 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.

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 eventualis applied to error in objecto and the logical error made by Masipa. The law on error in objecto is clear. 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. There appears to be nothing to save us from the inevitable conclusion that Masipa made errors of law and logic.

* http://m.bdlive.co.za/opinion/?articleId=339191.
** “Judge Masipa was right on Dolus and murder http://bit.ly/1wGgNdm”.
*** See Cubans B. , JUDGE MASIPA GOT IT RIGHT: Oscar Pistorius and the intention to kill http://shar.es/1aWktC via @thelawthinker.

While Masipa J has delivered judgement in the Pistorius case, there appear to be errors of law in her judgement. These errors of law may allow the prosecution to appeal.
Many commentators are saying that Masipa’s mistake was to misconceive the form of intention in our law known as dolus eventualis. A careful analysis reveals that the apparent error relates only partly to dolus eventualis. Instead, the apparent error related to how Masipa conceived of dolus eventualis as related to a far more complex issue in our law: the difference between the scenarios of error in objecto and aberratio ictus. It is only by understanding these scenarios, and the settled law on these scenarios, that one can understand where Masipa appeared to go wrong.
After dismissing the prospect of premeditated murder, Masipa turned her attention to whether Pistorius was nevertheless guilty of murder.
She indicated that this required that she deal with the defence argument that a conviction in the circumstances would require that the court revive an old doctrine rejected from our law: transfered intent. The spectre of this is daunting – because to understand that this doctrine is not in question, one must understand what it is, what it is not, and why it doesn’t apply. Correctly Masipa identified that this required an analysis of two scenarios in criminal law: error in objecto and aberratio ictus. Anyone who tells you these are easy to understand, probably hasn’t understood them. At its essence, scenarios of error in objecto (or where one is dealing with a person, error in persona) relate to circumstances in which one strikes/shoots at a particular object/person and one hit one’s target. If you have aimed at a human being (a particular human body), and you hit and kill that human being, you cannot argue that you thought that the person you killed was John, whereas, in fact, it was Peter. This (error in objecto/persona) is irrelevant.
Aberatio ictus on the other hand means “going astray of the blow” – and ultimately describes scenarios in which one misses one’s target. This is crucial because it is the essence of the distinction between scenarios of error in objecto and aberratio ictus. It is an aberratio ictus scenario where one aims and shoots at someone (John), but misses that person and strikes and kills another (Peter). The question arises whether this mistake is material and can form the basis of a defence.
In these scenarios, our law used to refuse to recognise that this mistake could possibly be a defence. It used to simply regard your intention to kill John as “transferred” onto Peter. Hence, “transferred intent”. Our law has shifted and rejected this transferred intent approach. It is now possible on our law to rely on this mistake as a defence against a murder charge in respect of Peter – but only if there was no other form of intention that actually fell on Peter. That is, our law will allow you to be convicted of the murder of Peter, if, while you intended to kill John, you also had intention in respect of Peter – such as perhaps dolus eventualis – you foresaw the risk of missing John and killing Peter, accepted the risk and proceeded. (For further discussion of the meaning of these two scenarios and the difference between them, please see http://wp.me/p3efQr-2)
Lets consider into which scenario the facts of Pistorius fits. Did Pistorius miss his target? No, he did not. He aimed at a particular human being and shot and killed that human being – whoever was behind the door. There can be no question that this is a scenario of error in objecto and that the identity of the person behind the door was irrelevant.
Masipa discussed these scenarios, correctly stated the law, and correctly identified that we (on the facts of the Pistorius case) are dealing with a scenario of error in objecto – in which (in the relevant sense) the identity of the victim was irrelevant. That is, it doesn’t matter who was behind the door. The significance of all of this is that it has direct implications for the way in which one enquires whether an accused had intention or not.
Then the first sign of trouble appeared. After turning her attention to the accused’s defence of putative private defence, Masipa stated that the question was: “whether the accused intended to kill.” Immediately it becomes apparent that there was a misconception regarding the nature of the defence of putative private defence. It is not the question of whether the accused intended to kill,  but whether he intended to unlawfully kill.
The question of whether the accused intended to unlawfully kill is the question of whether the accused believed he was under attack and entitled to resort to force in defence. This question was not engaged with. The question the judge pursued was whether he intended to kill.
At that point it seemed Pistorius was bound to be convicted of murder – given that there seemed little question that he did intend to kill whoever was in the toilet – despite his defence of putative private defence. But the judgement took another strange turn.
“I now deal with dolus eventualis or legal intent. The question is:
1. Did the accused subjectively forsee that it could be the deceased behind the toilet door;
2. Notwithstanding the foresight, did he then fire the shots, thereby reconciling himself to the possibility that it could be the deceased in the toilet.
The evidence before this court does not support the states contention that this could be a case of dolus eventualis. On the contrary, the evidence shows that, from the onset, the accused believed that at the time he fired the shots into the toilet door, the deceased was in the bedroom, while the intruders were in the toilet.”
She repeats this again twice: did he forsee the possibility of killing the deceased – although, on the third occasion coming closer to what ought to have been addressed: whether the accused foresaw the possibility of killing whoever was behind the door. She says, on the third occasion, that the accused did not forsee killing “the person behind the door, let alone the deceased, as he thought she was in the bedroom at the time”. But accepting that the accused thought that the deceased was in the bedroom does not exclude the possibility of there being someone else behind the door. Indeed, ironically, that is his own version: that he thought there was someone else behind the door. Applied to the undisputed law on error in objecto where one mistakes one person for another – which is immaterial – the question ought to have been: “did the accused forsee the possibility of killing whoever was behind the door”. This is an entirely different question which,  in turn,  begs the question whether the accused must have, and by inference did, forsee that he would kill whoever was in his toilet by firing four shots through the door.
It is true that, on day two of her judgement, she referred to several authorities on how one may reason to a finding of dolus (intention). These authorities make the valid point that one must be careful not to conclude that just because a reasonable person would forsee something (death of someone for our purposes), that the accused did. This is the usual and well founded caution against a logical error of thinking that just because something should be true, doesn’t make it true. Just because someone should have realised something doesn’t mean s/he did realise it.
She also summarised her findings and, in reference to dolus eventualis, said that “this court has already found that the accused cannot be guilty of murder dolus eventualis on the basis that, from his belief and conduct, it could not be said that he forsaw that either the deceased, or anyone else for that matter, might be killed when he fired the shots at the toilet door.” Regretably this takes things no further because it is a bare conclusion without the all important reasons for this statement. We are left having to rely on the reason she provided previously in her judgement – that he did not forsee killing “the deceased or anyone else for that matter” because, as she said previously, the accused thought that the deceased was in the bedroom. As discussed above, a belief that the deceased was in the bedroom does not exclude someone else being in the toilet and this is exactly what he believed, on his own version.
What is also revealing is that, on a defence of putative private defence, even if a court accepts that the accused acted in putative private defence (mistakenly believed he was under attack and was entitled to resort to force in defence), the problem of how much force in defence arises. It is not the question of whether the extent of force actually used was allowed, because, given that there was no attack, no force at all would be allowed. The question – a very necessary question – becomes, did the accused foresee that he was not allowed to resort to that extent of force. Masipa ought to have asked, if she engaged properly with a defence of putative private defence, whether, not only was the accused mistaken, but was he so mistaken that he could have believed he was entitled to fire four shots through a door at an intruder. The court could have gone either way on this, but that is not the point. The point is that this is another reason to think the Court did not properly engage with the defence of putative private defence.
On the charge of unlawful possession of ammunition Masipa seemed to conflate the mental requirement for possession (knowledge of possession), with the mental requirement (known as fault) for the crime – that is, can one only be guilty of this crime if one intends to unlawfully possess ammunition or even if one only negligently unlawfully possesses ammunition. The statute that creates this offence is silent on the issue, which requires, in turn, that a court must decide what form of fault, if any is required. This analysis is conspicuously missing from her judgement. The significance is that an analysis could have led her to the conclusion that only negligence was required. If that were so, his defence that he did not know he was not entitled to be in possession of the ammunition would have to stand up to the appropriate test of negligence: would the reasonable firearm owner know that this is prohibited?
In the final analysis, Masipa appears to have erroneously conceived of the defence of putative private defence, and to have misconceived the test of intention when dealing with a problem of error in objecto. Also, she appears to have conflated a requirement for possession for the fault required for the unlawful possession of ammunition. These are all, arguably, errors of law. As errors of law, the state may appeal. The effect is that, if the state does appeal, and one may well expect that it will, Pistorius continues to face the prospect of a murder conviction.

DISCLAIMER

This is translated and elaborated from an article, inspired by Marida Fitzpatrick, and published in the Beeld newspaper today (11 Sept 2014, see OSCAR: VAS OF VRY? http://www.beeld.com/nuus/2014-09-11-oscar-vas-of-vry via @Beeld_Nuus). It appears here subject to the disclaimer under which it was published.  To be clear,  Ulrich Roux and I wrote our respective pieces as an academic excercise to show what a guilty and not guilty verdict could look like; to help people to see both sides. We did not choose which verdict (guilty or not guilty) we would write; the views expressed are not necessarily our own views, and we don’t expect the court to necessarily adopt any of the views expressed.

NOT GUILTY

The criminal onus requires that the state must prove its case beyond a reasonable doubt and that if there is a reasonable doubt as to the accused’s guilt, he must be acquitted. A doubt means nothing more than a possibility. Is there a reasonable possibility that the accused is not guilty? In a world in which, in a relevant sense, everything is possible, the question for us becomes whether any of these possibilities in the accused’s favour, are reasonable.
The evidence that there were moments of discontent in the relationship, that the accused may have threatened to break someone’s legs, and other evidence to the effect that the accused may be of “bad character” might, in some respects be technically admissible because the defence led evidence of the accused’s good character – as provided by s 197 of the Criminal Procedure Act or at common law. However, in line with the general reason why this sort of evidence is ordinarily inadmissible, especially that the accused is not on trial for being of “bad character”, we regard it as of such little weight that we have excluded it from our considerations.
The testimony of the “ear-witnesses” is clearly in a different league. While it is correct that is “circumstantial evidence” in that it requires the court to draw inferences, most evidence, even so called direct evidence still requires that the court must draw inferences. Furthermore, we know that circumstantial evidence is not necessarily weaker than direct evidence. It is trite that in our law the drawing of inferences from circumstantial evidence is governed by the “cardinal rules of logic” from S v Blom 1939 AD to the effect that: the inference sought to be draw must be consistent with the proved facts, and it must be the only reasonable inference. The evidence of Dr Lin was to the effect that it is entirely possible that a person would mistake a male scream for that of a female. He did concede that it is possible that person could accurately distinguish, but this concession does not assist in finding that it was a woman who screamed – as the only reasonable inference. This is just another way of saying that there appears to be a reasonable doubt as to whether the screaming that was heard, was that of the deceased.
We disagree with the prosecution that these two defences (involuntariness and putative private defence) are incompatible. It is not the case that involuntariness is a claim to not have been thinking, while putative private defence is a defence that the accused was thinking, albeit mistakenly. This is to misconceive involuntariness – it is not a claim that one was not thinking, only that, if one was thinking, whatever one was thinking did not control one’s conduct.In that case, the two defences proposed by the defence in the alternative are compatible and amount to the claim that the accused was under a mistaken belief that there was an intruder in his toilet and 1) in his heightened state of anxiety he got a fright and involuntary discharged his firearm; 2) he voluntarily discharged his firearm in putative private defence (the mistaken belief that he was entitled to kill whoever was in the toilet).
The defence raised by the accused that he discharged his firearm as a result of a “fright” is, in our view, the defence if involuntariness.A state of involuntariness prevails if the accused’s conduct was not under the control of his conscious mind (Burchell, Principles of Criminal Law 2013; S v Johnson 1969 (1) SA 201 AD; S v Chretien 1981 (1) 1097 AD). This court has stated on numerous occasions that a court is permitted to draw the natural inference that, ordinarily, conduct is voluntary and that if an accused wishes to claim involuntariness, he must provide some basis for this claim. (S v Henry (1) 1999 13 SCA). We are of the view that this basis was indeed provided in the evidence of Professors Derman and  Vorster. In this, taken together with the evidence to the effect that the accused is an overly anxious person and likely to startle easily, we find a sufficient basis to place a reasonable doubt on the voluntariness of the accused’s conduct at the time of pulling the trigger.
In the absence of reliable evidence (particularly to the effect that the deceased was screaming that night) to support the version of the state as the only reasonable inference, we cannot accept the version proposed by the state. However, the question arises, on the accused’s own version whether we accept that there is a reasonable possibility that upon hearing a sound emanating from his bathroom, the accused immediately assumed an intruder or intruders had gained entrance to his home, that, throughout his response, until he fired the fatal shots, he continued to misinterpret further sounds and the situation generally as one of an attack, and that he did not foresee the possibility that he could be wrong and that it could be the deceased in the bathroom and toilet. Again, the question we must ask ourselves is not whether this could possibly be true – that is not enough for the accused. On the other hand, the question is also not whether we think this is true, nor whether this is what most likely or probably happened. The question is whether this could reasonably possibly have happened. Given that we have accepted that the accused is an overly anxious person, and that, ironically, because the State has convinced us that the accused is reckless with firearms, we are able to conceive of the reasonable possibility that he could have laboured under this mistake and fired his gun at the door in the mistaken belief that he was entitled to do so. This mistake excludes the intention to unlawfully kill and he cannot be convicted of murder.

***

See the article in the Beeld for Ulrich Roux’s guilty “verdict”. See also my article in the Telegraph to the effect that Oscar Pistorius is, in my view, in grave jeopardy: Legal View: Oscar Pistorius ‘in grave jeopardy’ of being convicted of Reeva Steenkamp’s murder | via @Telegraph http://fw.to/GnI3Kq

What is most important for parents, is that there is no basis recognised in law, upon which a parent may possess or distribute an image or video of his/her child that amounts to “child pornography”, simply by virtue of being a parent. If the images or videos you have of your own child amount to “child pornography”, your possession, as a parent, is unlawful – as will any distribution of these images and videos.

That said, after a careful analysis of both the Films and Publications Act, and the Sexual Offences Act, the following may be discerned: No matter whether you are a child’s parent, it is an offence to intentionally (or possibly negligently) unlawfully create, possess, or distribute an image or video of a child which is sexually explicit – where the primary objective (judged objectively and in context) is to illicit sexual arousal – showing a child:

(a) engaged in an act that constitutes a sexual offence;

(b) engaged in an act of sexual penetration;

(c) engaged in an act of sexual violation;

(d) engaged in an act of masturbation; or

(e) displaying the genital organs of such person in a state of arousal or stimulation;

(f) unduly displaying the genital organs or anus of such person;

(g) displaying any form of stimulation of a sexual nature of such person’s breasts;

(h) engaged in sexually suggestive or lewd acts;

(i) engaged in or as the subject of sadistic or masochistic acts of a sexual nature;

(j) engaged in any conduct or activity characteristically associated with sexual intercourse;

(k) showing or describing such person— (i) participating in, or assisting or facilitating another person to participate; or (ii) being in the presence of another person who commits or in any other manner being involved in, any act contemplated in paragraphs (a) to (j); or

(l) showing or describing the body, or parts of the body, of such person in a manner or in circumstances which, within the context, violate or offend the sexual integrity or dignity of that person or any category of persons under 18.

For the details see and a discussion of the actual offences, see Possession and Distribution of Child Pornography  Please read the full document before sending any questions – your questions may well be answered in the full discussion.