Month: August 2014

Provocation as defence in criminal law

A1blCan an accused in a criminal trial use the defence that he was so infuriated that he did not know what he was doing?

In S v Eadie 2002 (1) SACR 663 (SCA), the Supreme Court of Appeal delivered a judgement which raised doubt whether the defence of non-pathological criminal incapacity is still available in our law.

The facts in this case were the following: X, a keen hockey player, consumed a large quantity of liquor at a social function. Late at night he got into his car and drove home. On the way Y, the driver of another vehicle, overtook X’s car and then drove very slowly in front of him in such a manner that X could not overtake him. After a while X did succeed in overtaking Y, who then drove at high speed behind X with his headlights on bright. The two cars then came to a halt. X, very angry, got out of his car, grabbed a hockey stick which happened to be in the car, walked to Y’s car and smashed the hockey stick to pieces against it. He then assaulted Y continuously, pulled him out of his car and continued to batter him outside the car while lying on the road. Y died as a result of the attack.

The above factual scenario demonstrates an incident known as “road rage”. On a charge of murder X relied on the defence of non-pathological criminal incapacity. The court rejected his defence and convicted him of murder.

The court discussed previous decisions dealing with this defence extensively, and then held (in par. 57 of the judgement) that there is no distinction between non-pathological criminal incapacity owing to emotional stress and provocation, on the one hand, and the defence of sane automatism, on the other. More specifically, there is, according to the court, no difference between the second (cognitive) leg of the test for criminal capacity (i.e. X’s ability to act in accordance with his appreciation of the wrongfulness of the act, in other words, his ability to resist temptation) and the requirement which applies to the conduct element of liability that X’s bodily movements must be voluntary. If X alleged that, as a result of provocation, his psyche had disintegrated to such an extent that he could no longer control himself, it amounts to an allegation that he could no longer control his movement and that he therefore acted involuntarily. Such a plea of involuntary conduct is nothing else than a defence of sane automatism.

The court did not hold that the defence of non-pathological criminal incapacity no longer exists, but in fact, made a number of statements which implied that the defence does still exist. At the same time, it nevertheless declared that if, as a result of provocation, an accused person relies on this defence, his defence should be treated as one of sane automatism (a defence which can also be described as a defence by X that he did not commit a voluntary act.) The court emphasised the well-known fact that a defence of sane automatism does not succeed easily, and is in fact rarely upheld.

After the Supreme Court of Appeal decision in Eadie, it is highly unlikely that an accused will succeed with an argument that, as a result of non-pathological criminal incapacity he acted voluntarily, but merely lacked criminal incapacity.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Bail or not

A2blPeople are often outraged when they hear of accused persons who have been released on bail.

In this article the factors to be considered when deciding whether someone should be let out on bail or not will be discussed. This will allow us to better understand why someone has been released on bail or why they have not.

According to section 35(1)(f) of the Constitution[1] everyone who is arrested for allegedly committing an offence has the right to be released from detention if the interests of justice permit, subject to reasonable conditions. This provision sets out that the law cannot take away an innocent person’s freedom arbitrarily but recognises that in certain circumstances it may be in the interests of justice to take away or limit this freedom.[2]

The next question that arises is how we know when the refusal to grant bail is in the interests of justice. According to section 60(4) of the Criminal Procedure Act[3] (CPA) the interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established:

a)  Where there is the likelihood that the accused, if released on bail, will endanger the safety of the public or any particular person or will commit certain offences;

b)  Where there is the likelihood that the accused, if released on bail, will attempt to evade trial;

c)  Where there is the likelihood that the accused, if released on bail, will attempt to influence, intimidate or conceal witnesses or destroy evidence;

d)  Where there is the likelihood that the accused, if released on bail, will undermine or jeopardise the objectives or the proper functioning of the criminal justice system, including the bail system;

e)  Where there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security.[4]

In considering whether the grounds in (a) to (e) above have been established various factors, which are set out in Sections 5 – 9 of the CPA, may be taken into consideration, which include the following:

  • the degree of violence towards others implicit in the charge;
  • the accused’s ties to the place at which he or she is to be tried;
  • assets and travel documents held by the accused;
  • the accused’s relationship with the witnesses and the extent to which they could be influenced;
  • whether the accused supplied false information during his or her arrest or bail proceedings;
  • any previous failure to comply with bail conditions or indications that he or she will not comply with any bail condition;
  • whether the nature of the offence or the circumstances under which the offence was committed is likely to induce a sense of shock or outrage in the community; and
  • whether the shock or outrage of the community might lead to public disorder if the accused is released.[5]

The court decides whether the accused should be let out on bail by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if he or she were to be detained in custody, and must take into account, inter alia, the period for which the accused has been in custody; the probable period of detention until the end of the trial if bail is not granted; the reason for any delay in the trial and any fault on the part of the accused; any impediment to the preparation of the accused’s defence due to the detention of the accused, and the accused’s state of health.[6]

When dealing with Schedule 5 and 6 offences the accused will be detained in custody unless the accused can show the court that it is in the interests of justice or that exceptional circumstances exist which permit his or her release, respectively. [7]

We can see from this article that the court must weigh up many factors against each other and although we do not always understand why accused persons are released on bail, anyone would want a fair bail application if they found themselves in that same position.

Bibliography:

  • The Constitution of the Republic of South Africa, 1996
  • J Chaskalson & Y De Jong – Criminal (In)Justice in South Africa, 2009:86
  • The Criminal Procedure Act 51 of 1977

[1] The Constitution of the Republic of South Africa, 1996.
[2] J Chaskalson & Y De Jong – Criminal (In)Justice in South Africa, 2009:86.
[3] Section 60(4) of the Criminal Procedure Act 51 of 1977.
[4] Section 60(4) of the Criminal Procedure Act 51 of 1977.
[5] Section 60(5-9) of the Criminal Procedure Act 51 of 1977.
[6] Section 60(10) of the Criminal Procedure Act 51 of 1977.
[7] Section 60(11-12) of the Criminal Procedure Act 51 of 1977.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

A promise to marry

A3blIn this article the legal consequences of breaking off an engagement will be discussed.

Is it a contract, and if it is, can you institute a claim for damages due to a breach of this contract?

In order to enter into a valid engagement to be married the following requirements must be met:

  • Both parties must have the capacity to act, which generally means that parties must be older than 18 years or if they are minors, that they have the necessary consent from their guardians.
  • Both parties must voluntarily consent to the engagement. A material mistake, such as the identity of either of the parties, will render the engagement void. There must also be no misrepresentations made by either of the parties; in other words, where it would have resulted in the contract not being concluded, had the other party known the truth.
  • Both parties must be permitted by law to marry each other. For example, you may only be engaged to one party, unless a polygamous engagement applies under African Customary Law.
  • One may not marry a sibling.

It is important to note that there is no law in South Africa that requires an engagement before marriage.

Once a date for the marriage has been determined, there is a reciprocal duty to marry on that date, unless the date is changed by mutual agreement. Further, if no date has been determined, it is presumed that the marriage will take place within a reasonable time. Nevertheless, either of the parties may terminate the engagement, which may or may not attract a claim for damages or return of gifts.

An engagement can be terminated in the following ways:

  • Marriage
  • Death of either parties
  • Mutual agreement
  • Withdrawal of parental consent
  • Breach of promise
  • Termination by one party that is justified and based on sound reasons

It is important to establish whether there is a just cause for cancellation. If there is, the engagement may be validly terminated. A reason such as sterility or criminal activity, if it was only brought to the attention of the other party after agreeing to marry, may provide enough grounds to break off the engagement. If both parties agree to terminate the engagement, all gifts given in anticipation of the marriage, including the engagement ring, must be returned.

If one party breaches the promise to marry without justifiable reasons, the innocent party can, according to our law, institute a claim for damages, provided that the losses were within the contemplation of the parties. The innocent party can claim expenses incurred in anticipation of the wedding, thus placing the innocent party in the financial position he or she would have been had the engagement never been entered into. Further, the innocent party may keep or claim back the engagement ring as part of costs incurred.

In the case of Van Jaarsveld v Bridges, the court decided that a party cannot successfully institute a claim for prospective losses on the basis of a breach of promise to marry, because an engagement is not an ordinary contract in the context of contractual damages and should therefore not be placed on a rigid contractual footing. This means that a party may not institute a claim for damages placing him or her in the position he would have been had they gone through with the marriage. Previous court judgements indicate that compensation will be awarded at the discretion of the court and that each case must be evaluated on the basis of its individual circumstances.

In conclusion, it is important to note that a promise to marry is an agreement which attracts legal consequences; therefore one should not be hasty when deciding to ask the big question.

Bibliography:

  • Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA).
  • Cloete v Maritz 2013 (5) SA448 (WCC).
  • Bull v Taylor 1965 (4) SA 29 (A).
  • Georgina Guedes, 23 October 2013, Mail and Guardian, “Five fallacies about engagement rings”.
  • A Guide to Divorce and Separation in South Africa, “Engagement and the Law”.
  • Ronald & Bobroff, “The engagement”.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Fast divorces in Cape Town

A4blDivorces can be heartbreaking, painful, costly and time consuming when parties cannot reach a settlement between themselves.

However, all hope is not lost. Many young couples choose to get married in terms of an antenuptial contract, which states what each party declared to be excluded from the matrimonial estate and will remain each party’s exclusive property.

If a couple does not have an antenuptial contract when they choose to go their separate ways, but already have a settlement in mind, whether it be with regard to property or children, they have the option of entering into a Consent Paper.

A Consent Paper states the terms on which the parties choose to divide their property or items that they have accrued over time. A Consent Paper should also deal with the maintenance, child care, medical care and any other issues that can arise with regards to minor children. A Consent Paper can be edited many times before it is endorsed by the Court, as long as both parties are in agreement. Once the parties are in agreement and summons has been served on the Defendant, the parties can obtain a final divorce order as soon as the following week. It is important to take note that where there are minor children involved, the Consent Paper must first be endorsed by the Family advocate in order to make sure that the arrangements regarding the care of such minor children are in line with the provisions of the Children’s Act. If there aren’t any issues with the arrangements as set out in the Consent Paper the Family advocate usually only takes about two days to endorse the Consent Paper.

A divorce order incorporating the Consent Paper may be obtained in the Regional Court or the High Court. The Cape Town High Court has jurisdiction over the Western Cape and is a speedy court when it comes to divorce matters that have been settled. The parties can choose their own divorce date in the Cape Town High Court provided that such date falls on a court date. This notice serves as booking for that date and as notice to the Defendant of such date.

One or both of the parties have to be present in court on the date as set out in the Notice of Set Down. However, it is advisable to use the services of an advocate in order to make the process as efficient and painfree as possible.

A divorce is never pleasant, but one should remember that once upon a time, the same parties that are asking for a divorce now, made promises to each other to take care of each other for better or for worse. Divorces don’t need to cost many years and tears, it can be finalised amicably and quickly. Even though the marriage itself was not meant to be, the memories will last forever.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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