JUSTICE COLLEGE

PROVOCATION
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COMPILED BY : S Ellison
DATE : March 2010
EDITION : 2010

NO PART OF THIS NOTE MAY BE REPRODUCED OR TRANSMITTED IN ANY FORM OR BY

ANY MEANS WITHOUT THE REQUIRED PERMISSION IN WRITING.

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CONTENTS PAGE

1. Introduction 4
2. The Defence of Provocation 6
3. Summary of the Defence of Provocation 7
4. The Test for Provocation 8
5. Provocation and Negligence 9
6. Automatism 10
7. Non-Pathological Criminal Incapacity 10
8. Battered Women Syndrome and Automatism 14
9. Case Law 18
S v van Vuuren 1983 (1) SA12 (A)
S v Campher 1987 (1) SA 940 (A)
S v Laubscher 1988 (1) SA 163 A
S v Calitz 1990 (1) SACR 119 (A)
S v Wiid 1990 (A)
S v Kalogoropoulos 1993 (1) SACR 12 (A)
S v Potgieter 1994 (1) SACR 61 (A)
S v Kensley 1995 (1) SACR 646 (A)
S v Henry 1999 (1) SACR 13 (SCA)
S v Cunningham 1996 (1) SACR 631 (A)
S v Francis 1999 (1) SACR 650 (SCA)
S v Kok 2001 (2) SACR 106 (SCA)

10. Analysis 28

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1. Introduction

As a matter of law a range of possible defences to criminal liability exist –

insanity, duress, mistake of fact and to some extent mistake of law and
intoxication. These defences are defined narrowly, partly because effect
can be given at the sentencing stage to variations in culpability. Thus it is
important to consider whether a case contains an element of duress,
mistake or provocation.

Provocation does not constitute a general defence (although provocation

may reduce murder to culpable homicide) but courts are expected to take it
into account when assessing culpability for the purposes of sentencing.
The issue is to recognise that culpability is wider than cognition, as
represented by the two legal terms of intention and negligence and that it
extends to a wide range of volitional and situational factors.

The boundaries may be pushed further. It is not simply that considering a

claim of provocation the court may have to reach beyond the accused’s
awareness of what he was doing or his control over his emotions and the
pressure exerted by others. There are at least two additional issues – the
question whether individuals should be held responsible for their actions
and their intentions and whether culpability may be reduced by factors
such as prior physical or mental abuse. These questions are all
interconnected.

In general there is no reason to abandon the rational stance that in most

matters people have some choice whether to act or to refrain from acting.
This is a qualified statement because our law accepts that there are some
occasions when behaviour can be deemed to be so heavily determined by
factors as not to justify any blame. This includes instances where the

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defence of insanity or the defence of duress succeeds. These are atypical

cases which do not defeat the general proposition that in general most
people have sufficient freedom of action for most of the time, so that they
can be suitably judged in terms of culpability.

The criminological arguments about the causes of crime are regularly

raised when courts are addressed on mitigation and factors such as a
difficult family background or social disadvantages may be presented. The
question is whether this should be accorded any effect in judging
culpability. Research findings may well confirm that certain background
factors tend to be associated strongly with subsequent criminality.
However, although these findings tend to confirm the general causal
relationship between crime ad economic policy/social and other
background factors and may add credence to the argument that an
accused with a specific background might be regarded as less culpable,
strong arguments range against this.

The very process by which people learn to avoid crime requires that the
courts act as if crime were wholly the result of free choice. Thus the
appropriate short-term approach is to regard offenders as rational citizens
able to make choices and not to reduce sentences wholesale due to the
imperfections of any policy.

The assessment of culpability has various dimensions. At the level of legal

liability it usually turns on intention, negligence and a limited group of
excusing defences. Where the case has elements of an excusing condition
but falls outside the narrow legal definition for a defence, this should
operate as a ground for reduced culpability. Although these instances of
reduced culpability might be regarded as mitigating factors or as questions
of culpability, there is no firm dividing line between them.

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2. The defence of provocation

The defence of provocation is concerned with the situation where the

accused intended to unlawfully kill or cause grievous bodily harm but
acted under a sudden loss of control. The issue is whether an accused can
rely on the defence where the evidence indicates that his conduct was
preceded by so-called provocative behaviour.

In South African law the ‘general principles approach’ is taken when

dealing with pleas of provocation. This is borne out by decisions such as
Mokonto 1971 2 SA 319 (A), Campher 1987 1 SA 940 (A) and Wiid 19901
SACR 561 (A). In essence, provocation can exclude an intention to murder
as well as exclude criminal capacity in extreme cases. The upshot is that
once criminal capacity has been excluded then the accused is acquitted,
unlike an exclusion of intention, where a conviction of culpable homicide
or assault will operate as an appropriate conviction. Where an accused
argues that the provocation resulted in non-pathological criminal
incapacity (NPCI), then severe emotional stress is included within the
limitations of provocation.

The general principle approach operates by the courts applying the

ordinary principles of criminal liability. The question is whether the
accused, despite the provocation, carried out an act which complied with
the definitional elements of the crime, the act was unlawful, the accused
had criminal capacity and he acted with intention or negligence. The salient
question to be answered is what the effect was of the provocation on the
mind of the accused and not what the nature of the provocative act was.

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3. Summary of the defence of provocation

1. The defence may exclude criminal capacity in exceptional cases

(NPCI). If the accused, due to the provocative act/s suffered such
emotional instability or stress that at the time of commission of the
offence he lacked the ability to appreciate the wrongfulness of his
act or to act in accordance with such appreciation, he must be found
not guilty and acquitted. Expert evidence should be led to establish
that the accused lacked criminal capacity at the time of the act.
However the likelihood of the accused succeeding with the defence
where he became emotionally disturbed just prior to and during the
act, is slim.

2. The defence may exclude intention. The elements of intention

comprise both cognitive (knowledge) and conative (self-control)
aspects. The accused must have knowledge of the circumstances
and the unlawfulness of his act. In certain cases a provocative act
may exclude the accused’s awareness of unlawfulness and thus also
his intention i.e. the accused was unable to understand the
implications of his actions.

In the majority of cases where an accused is charged with murder he

will be convicted of culpable homicide where there is no evidence of
intention to kill. This is primarily because it is highly unlikely that he
did not kill negligently, due to the provocation.

Where an accused is charged with assault to cause grievous bodily

harm, a successful defence of provocation will result in a conviction
of common assault. This is the case despite the accused having had
no ‘intention’ to cause grievous bodily harm. The reasoning is that
the courts are loathe to treat the defence of provocation as a

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complete defence as this would open the floodgates for those

insulted or provoked to take matters into their own hands. Therefore
it is evident that this approach concurs with practical, rather than
legal theory.

3. The defence may in fact confirm the existence of intention as the

provocative act may indicate a motive for the conduct. For example,
in S v Mokonto the Appellate Division concluded that an accused
had intentionally killed a woman after she had provoked him with a
threat of death through witchcraft. The court averred that if
provocation played any part in the conduct of the accused, far from
negativing intention to kill, it contributed to intention and resulted in
a verdict of culpable homicide.

4. The defence may operate as a ground for mitigation. This occurs

where the provocation does not exclude criminal capacity or
intention. Crimes committed on impulse, rather than premeditated,
are generally less blameworthy.

4. The test for provocation

Provocative behaviour will only operate in favour of an accused if the

behaviour had a certain effect on his mind. The behaviour must exclude
criminal capacity or intention or operate as a mitigating factor.

The decision in Mokonto 1971 2 SA 319 (A) stated that the test is not how
an ordinary person would react to the provocation but how the particular
accused, with this personal characteristics, reacted. A subjective test is
applied. What is relevant is the effect of the provocative act on the state of
mind of the accused and not the nature of the provocative act itself. Issues

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regarding the appropriateness and applicability of such a subjective test

will be considered in more detail below.

Snyman disagrees with a reasonableness or objective approach to

provocation :

"the problem with using an objective test is that it requires everyone,

whatever his/her culture or background, to observe the same
standard which would be what is 'fairly and reasonably expected of a
person of ordinary knowledge, experience and capacities'."

The provocative act need not be unlawful – Thibani 1949 4 SA 720.

Whether or not an accused can be convicted or murder or culpable

homicide cannot be established merely by determining whether the attack
occurred immediately after the provocative act or after a ‘cooling off’
period. These are merely factors for the court to consider.

Although some courts have insisted on proportionality between the

provocation and the reaction of the accused (Bayat 1947 4 SA 128,
Claassen 1957 1 PH H71 and Bureke 1960 1 SA 49 (F) 51) it may be argued
that since the subjective test espoused in Mokonto, this approach no
longer carries much weight. However the issue of proportionality remains
important when assessing whether the attack by the accused was unlawful
and whether private defence may be relied on.

5. Provocation and negligence

If an accused is charged with a negligence crime then any provocation will

exclude negligence if a reasonable person would have reacted in the same
way. The test for negligence is objective and as most reasonable people do

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not exceed the bounds of self-control or restraint, it is unlikely that

provocation will succeed as a ground for excluding negligence.

6. Automatism

Medical and legal experts enter a legal quagmire when attempting to

establish the meaning of ‘automatism’ and ‘criminal incapacity.’ The Oxford
Dictionary defines automatism as ‘involuntary action. Action performed
unconsciously or subconsciously’. Unfortunately, attempting to define
‘unconsciously’ or ‘sub-consciously’ also leads to some confusion.

It is interesting to note that the Diagnostic and Statistical Manual of Mental

Disorders 4th Ed fails to define automatism. However the most decisive
legal definition can be said to have originated from Lord Denning in the
case of Bratty v A-G for Northern Ireland, when he noted:

‘it is an act which is done by the muscles without any control by the
mind, such as a spasm, a reflex action or a convulsion; or an act
done by a person who is not conscious of what he is doing, such as
an act done while suffering from concussion or while sleepwalking.’

A judge also once observed that ‘automatism is a defence which in a true

and proper case may be the only one open to an honest man, but it may
just as readily be the last refuge of a scoundrel.’

7 Non-Pathological Criminal Incapacity

NPCI is a defence arguing against the fact that an accused acted

voluntarily. The defence may be raised when an accused alleges that due
to a provocative act he failed to have the requisite criminal capacity i.e. he

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was incapable of exercising self-control at the time of the commission of

the crime. Such a defence contends there was no cognitive function when
the crime was committed and that a pathological mental problem or
disease was not the cause of such temporary incapacity. It suffices that the
accused lacked criminal capacity for a relatively brief period and the
incapacity was not a manifestation of a pathological mental disturbance.
Thus an emotional collapse suffices.

The defence is distinct from the defence of insanity in that once it is

asserted that the loss of criminal capacity was due to factors such as
intoxication, provocation and emotional stress, it is termed non-
pathological incapacity and a successful defence results in an acquittal.

The legal theory behind the defence is that if a person was unable to
control himself then he had no criminal capacity including intention or
negligence. The courts tend to approach the defence with some
circumspection on the basis that although it may be easy to argue criminal
incapacity, it is notoriously difficult establishing with absolute certainty
that an accused acted with no capacity.

For an accused to succeed with a defence of NPCI he must provide

evidence of a precipitating event that caused him to lose the ability to
distinguish between right and wrong or to act in accordance with such
appreciation. Since the decision in Eadie, NPCI is treated as sane-
automatism i.e. a person acts as an automaton. Thus, an accused can only
be said to lack self-control if he acts as an automaton. A total destruction
of voluntary control is required and impaired or reduced awareness will not
suffice. For example, a driver, in an hypoglycaemic state, drives five
kilometers erratically. Can he be convicted of reckless or negligent
driving? On balance the answer is in the negative as he did not act as an
automaton. He was still capable of reacting to stimuli, could make

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decisions (brake or steer) and could give directions to his limbs. There was
not a complete destruction of control over his acts.

Since the decision in Eadie it is doubtful whether the defence of NPCI still
exists. The Court held that there is no distinction between NPCI due to
emotional stress and provocation and the defence of sane automatism. In
essence there is no difference between the conative leg of criminal
capacity (self-control) and the requirement that the bodily movements of
the accused must be voluntary. If an accused alleges his mind deteriorated
to the point that he could not control himself, this is analogous to being
unable to control his movements and so his actions are involuntarily. This
is akin to the defence of sane automatism.

In summary, Eadie is limited to cases where an accused alleges that he

lacked capacity due to provocation or emotional stress (sane automatism).
The defence of NPCI will still remain for intoxication matters.

Although the accused is burdened with laying a foundation for his defence
which must be rebutted by the prosecution, the prosecution has the
advantage that absent any exceptional circumstances, a sane person who
commits an offence does so consciously and voluntarily. Thus an accused
must provide a basis for a finding that he was unable to appreciate the
difference between right and wrong and further and that he was unable to
act in accordance with such appreciation when he acted.

However, despite this legal stance, Eadie has questioned whether an

accused can prove that despite the ability to distinguish between right and
wrong, he was not able to act based on that knowledge. The Court did
concede that although it may be problematic to have a situation where an
accused has the ability to distinguish between right and wrong but yet
cannot control his actions, it is notionally possible. Consequently it may

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now be the case that it will not suffice for an accused to merely prove he
was unable to control himself or to resist temptation. Thus only in
exceptional cases will an accused be successful with a NPCI defence.

It may be added that in fact it may almost be virtually impossible to prove

NPCI. To establish the incapacity required for NPCI the courts apply the
subjective test i.e. whether the accused suffered from criminal incapacity
and not whether a reasonable person in the same situation would have had
no criminal capacity. However, an objective test is also applied by
determining whether it was reasonable for the accused to have lost his self
control. If an accused fails the objective test, then from a subjective
assessment his lack of control is doubtful. This test is akin to the court
determining the honest belief of an accused raising the defence of putative
self-defence. His state of mind is tested against his prior and subsequent
conduct as well as against the experience of human behaviour and social
interaction. This is confirmed in Eadie where it is argued that many people
may experience the same or even worse situations, yet they manage to
retain their self-control when provoked.

Besides considering the actions of the accused surrounding and during his
unlawful conduct, the court also takes note of any goal-directed, focused
behaviour as this suggests that the accused was acting with control. For
example, in S v Kali, [2000] 2 All SA 181 (CK) the court concluded that the
accused had criminal capacity despite his rage. He had shot and killed
members of his girlfriend's family. He did not shoot everyone present in the
room and therefore the defence failed as "… his actions were directed at
certain individuals only and do not reflect an involuntary or uncontrollable
course of conduct."

The courts accept that where there is an allegation that an accused acted
as an automaton in a situation where he maintained motor functions, he

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would only be able to perform a function he had previously carried out. The
rationale is that automatons do not control their actions. Their body
performs motor functions that it can recall from a previous occasion. If an
accused alleges he acted as an automaton yet had the ability to carry out
an act he had never previously done before, such as load a pistol, then it
will be concluded that he acted with control as his conduct was not part of
his muscle memory.

The courts also analyse the behaviour of the accused after the fact to
determine whether he presented as dazed, confused or in control. A person
emerging from sane automatism often presents as confused and
disoriented. The courts also assess whether the accused was able to recall
the event. There should be a genuine rather than a retrospective loss of
memory as it may be usual to undergo some form of amnesia after
experiencing a traumatic event.

8. Battered women and automatism

Ascertaining whether there was goal-directed behaviour and therefore

criminal capacity can be extremely problematic in cases concerning
battered women who kill in non-confrontational situations. A trigger or
precipitator is required to initiate the state of automatism and the trigger
should be serious enough to induce the woman into a state of psychogenic
automatism.

Regarding such trigger or precipitating event, there are no specific

requirements. For instance a lack of capacity can result from emotional
collapse, emotional stress, total disintegration of the personality or due to
factors such as shock, fear, anger or stress. The provocation may be
immediate or may have developed over a long period (‘slow-burn’). The
incapacity may have resulted from a combination of factors, such as stress

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and intoxication. The trigger may be due to insulting, malicious or cruel

conduct by a third person. Factors such as pre-menstrual stress or
overpowering and debilitating social conditions can also be taken to
constitute a trigger. Thus there are no defined limits to the cause of
incapacity when the defence is raised.

As indicated, the courts tend to approach the defence with some

circumspection. It appears that only stress or provocation will result in
NPCI rather than a situation where the accused is emotionally disturbed for
a very brief period before and during the act. In the majority of cases where
the defence succeeded or the court considered the matter, the act was
preceded by a long period of time where the level of emotional stress
increased progressively over time.

Battered women who kill in non-confrontational situations generally raise

the defence as the issue is not the nature of the provocative behaviour but
rather its effect on the mind or mental condition. In theory this means that a
court is entitled to acquit a person who kills his/her partner out of jealousy,
rage or possessiveness, provided there is proof of criminal incapacity.

Although expert evidence is not mandatory when NPCI is raised as a

defence, it is strongly recommended. Expert evidence may concern factors
such as the nature of the emotion which acted as a precipitator for the
mental condition, or any relevant behavioural aspects which may indicate
the presence or absence of awareness and cognitive control. The defence
cannot be raised where there has been an element of deliberation or
premeditation. However, where there has been a protracted course of cruel,
insulting or violent behaviour which reduced the resilience and resolve of
the accused to retain self-control, the defence can be raised if the final act
caused a loss of self-control which the accused has previously been able
to exercise.

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There is no requirement that an accused must have lost control suddenly

or immediately after the precipitating event. An accused may have suffered
a protracted period of violence and abuse and therefore it may be
inappropriate to require a sudden loss of self-control. Victims subjected to
long-term violence or abuse may react to the final trigger by delayed action
(‘slow-burn’) rather than an immediate loss of control. Therefore, what is
required is a sudden and temporary loss of self-control due to the
provocation. Evidence of a longer delay and deliberation may make it more
likely that the provocation is annulled. The accused must have had no
power of reflection, as this might imply revenge rather than reaction
without self-control.

The loss of self-control need not be of very short duration. If an accused

has no criminal capacity and thus has no control over his actions, it should
be immaterial that his incapacitated state only endured for a brief period.
Thus where there has been a protracted course of abuse, the entire period
must be taken into account in considering whether there was a sudden and
temporary loss of self-control due to the final trigger. Even a final minor
incident may suffice to result in a lack of control.

The Supreme Court of Kentucky opined that:

“… extreme emotional disturbance may be more gradual than the

flash point normally associated with sudden heat of passion. The
fact that the triggering event may have festered for a time in the mind
of the accused before the explosive event occurred does not
preclude a finding that she killed her husband while under the
influence of extreme emotional disturbance”.

However, despite the above it remains a contentious issue as to whether

battered women who kill in non-confrontational situations can raise NPCI

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as a defence after the decision in Eadie. It is also generally accepted that

the decision all but abolished the defence, making its application rare.
Others may contend that the defence remains, as it turns on the facts of
each case. It has also been suggested that a battered woman who kills her
abuser using an outside agent may still raise NPCI despite the time lapse
between the triggering event and her act and despite the goal-directed
behaviour. This stance has been extended even further by arguing that a
court should view the premeditation within the psychological parameters
from which the woman cannot escape. She premeditates in circumstances
where her psychology has been severely affected. The abused woman can
be seen to be analogous to someone ensnared in a cage, and after being
conditioned to believe there is no escape, cannot see any means to free
herself. This in itself may represent non-capacity or diminished capacity.

The more goal-directed the behaviour is, the less credible a claim of
incapacity will be. This can extend to battered women who hire agents to
kill their abusive spouses/partners. Any premeditation is indicative of
planning and calculation and therefore no automaton conduct which is
required for NPCI.

There is argument for the courts to take a less subjective and more
objective stance i.e. would a reasonable person have reacted to the trigger
by entering a state of automatism. It may also be argued that due to public
policy, courts should not justify unreasonable wrongful acts.

Burchell notes:

"It could be argued that, in the interests of the security of the

community, in cases of violence perpetrated under provocation or
emotional stress, only reasonable lack

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of capacity for self-control or reasonable loss of self-control should

excuse."

This approach clearly establishes a requirement of proportionality

between the precipitating event and the reaction. It is also a contentious
issue as to whether factors such as gender should be considered relevant.

9. Case law

S v van Vuuren 1983 (1) SA12 (A)

The appellant shot and killed his ex-wife and injured her friend. The
incident occurred after increasing tension between the appellant and the
victims. After the event the appellant behaved rationally and responsibly.
He drove his daughter to his parents’ house and summoned the police and
ambulance. He also admitted to a policeman that he had shot two women.
He then drove back to the house where the shooting occurred.

The appellant alleged that he had no knowledge of the actual shooting.

However he was able to provide a detailed account of his actions during
the evening, both before and after the shooting. The trial court therefore
correctly concluded that he had criminal capacity at the time of the act.

Regarding the matter of emotional stress together with provocation and

intoxication, Diemont AJA stated:

"These factors, the drink, the provocation and the emotional stress
all serve to mitigate his moral turpitude, but I am not persuaded that
they caused such mental turmoil that the appellant had no
understanding or knowledge of what he was doing. There is
evidence, persuasive evidence, which supports the State's

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contention that the appellant not only was fully aware of his actions
but that there was a measure of premeditation."

S v Campher 1987 (1) SA 940 (A)

The appellant shot and killed her husband after years of physical and
psychological abuse. Prior to the shooting the appellant had been
physically abused and humiliated. On appeal, the question was whether the
appellant lacked criminal capacity at the time of the shooting.

Viljoen JA was of the view that the appellant was entitled to an acquittal.

Boshoff AJA was of the view that she had the capacity to distinguish
between right and wrong and to act accordingly.

Jacobs JA contended that where an accused had the ability to distinguish

between right and wrong, the defence of irresistible impulse is only
available where a mental illness or defect was present.

Jacobs JA and Boshoff AJA constituted the majority and dismissed the
appeal. However on the law Boshoff JA and Viljoen JA held that in principle
emotional stress could lead to an absence of criminal capacity and an
acquittal.

S v Laubscher 1988 (1) SA 163 (A)

The appellant, a medical student, discharged twenty one rounds of
ammunition into various rooms in a house where his wife and parents-in-
law were residing. His father-in-law was killed and the appellant was
charged with inter alia murder and attempted murder. The contention was
that the appellant had suffered a total temporary psychological breakdown
or disintegration of his personality, with the result that his actions were
involuntary. Prior to the shooting there had been heated verbal exchanges

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and a protracted struggle by the appellant to get his wife and child to return
to him.

Joubert JA found that although the actions of the appellant had been
irrational and out of character with his normal personality, he had acted
voluntarily and was therefore criminally liable. He still retained powers of
discernment and restraint. Joubert JA added that the trial court was correct
to consider the goal-directed and purposeful acts by the appellant, before
and during the incident, together with the fact that he drove from the house
after the event.

S v Calitz 1990 (1) SACR 119 (A)

The appellant was a sergeant in a counter-insurgency unit in the army and
was charged with murdering a villager. He raised the defence of NPCI due
to rage which arose after he and the deceased had argued due to the
deceased having driven an army vehicle over a pole with ritual significance
for the village.

The appellant could recount details of the incident as well as involving his
men in a cover-up operation. The appellant planted a Libyan uniform
together with arms and ammunition near the home of the deceased and
radioed his base to inform them that an enemy had been killed.

Botha JA concluded that the appellant had the requisite criminal capacity
at the time of the murder.

S v Wiid 1990 (A)

The appellant shot and killed her husband after years of physical and
mental abuse. Her defence of NPCI due to emotional stress was successful.
The deceased had severely assaulted the appellant immediately prior to the
shooting, breaking her nose and a tooth and splintering other teeth. Her

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spectacles were broken and her mouth was bleeding. After the incident the
deceased threatening to assault the appellant again and shortly thereafter
she shot him.

After the shooting she was heard to ask: "Wat het ek gedoen?" A
policeman testified that on his arrival at the scene the appellant was
bewildered and disoriented and that her recollection of events was vague.
She was unable to recall the actual shooting but remembered that the
deceased had threatened to kill her. She could not recall picking the pistol
up but remembered hearing shots.

The appellant had been in a state of stress prior to the incident and was
highly emotional. Expert evidence contended that due to the taking of
sedatives and alcohol and a poor diet, together with the severe assault and
death threat, the appellant may have lacked criminal capacity and not been
able to distinguish between right and wrong.

The trial court held that it was reasonably possible that she suffered from
concussion after the assault and this still persisted when she fired the
weapon.

The appeal was upheld and the appellant acquitted.

S v Kalogoropoulos 1993 (1) SACR 12 (A)

The appellant shot and killed his domestic servant and business partner
and wounded his wife and the wife of his partner. He was convicted by the
trial court, inter alia, on charges of murder and attempted murder.

The appellant suspected his wife was conducting an affair with his
business partner. While intoxicated he armed himself with a revolver and
confronted his wife and partner. A heated argument ensued and the

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appellant fired a shot that struck and wounded his wife. He then fired a
number of shots in quick succession, killing his business partner and
wounding his partner’s wife. The appellant drove home where he armed
himself with another pistol and shot and killed the domestic servant.

The appellant argued that due to his intoxicated state and the provocation,
he lacked criminal capacity. His defence was rejected and the appeal
dismissed.

Botha AJ reasoned:

"The shooting in the office could not have lasted for more than a
couple of seconds. Immediately before that short space of time the
appellant was in control of himself; that is not in doubt. Immediately
after it he was again in control of himself; so Dr Vorster says herself
(as I have indicated, for good and compelling reasons). He then
replaces the emptied revolver with a loaded pistol and, having just
shot three people, proceeds to shoot a fourth. On the face of his
conduct before and after, it seems tome almost inconceivable that in
the brief interval in between he was deprived of self-control. The
appellant shot Dora (and the dog) because he was angry and
emotionally upset, but while in a frame of mind where he could exert
self-control."

S v Potgieter 1994 (1) SACR 61 (A)

The appellant shot and killed her lover after years of physical and
emotional abuse. The defence of sane automatism was raised, alternatively
that she was impelled by an irresistible impulse and therefore lacked
criminal capacity. The trial court rejected this defence.

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On appeal, Prof CWH Schmidt’s article Laying the Foundation for a Defence
of Sane Automatism in the 90 (1973) SALJ 329 at 333 was cited:

"…the accused has to adduce evidence from which a reasonable

alternative inference can be drawn' that he acted unconsciously."

Kumleben JA states:

"The need for careful scrutiny of such evidence is rightly stressed.

Facts which can be relied upon as indicating that a person was
acting in a state of automatism are often consistent with, in fact the
reason for, the commission of a deliberate, unlawful act. Thus – as
one knows – stress, frustration, fatigue and provocation, for
instance, may diminish self-control to the extent that, colloquially
put, a person 'snaps' and a conscious act amounting to a crime
results. Similarly, subsequent manifestations of certain emotions,
such as fear, panic, guilt and shame, may be present after either a
deliberate or an involuntary act has been committed."

The Court concluded that the actions of the appellant were intricate and
goal-directed and therefore she did not act as an automaton. The appeal
against her conviction was dismissed.

S v Kensley 1995 (1) SACR 646 (A)

The appellant shot and killed two people after discovering that they were
female impersonators. His defence was that he lacked criminal capacity
due to non-pathological factors i.e. a combination of severe emotional
stress and intoxication.

Van den Heever JA submitted that the state had to prove beyond a
reasonable doubt that an accused could distinguish between right and

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wrong and that he was capable of acting in accordance with that

distinction. He stated:

"It does not mean that the ipse dixit of an accused that in the given
situation, whatever that might be, he was unable to control himself
(giving rise to a theoretical possibility as postulated by Dr Teggin
that that could be so) must lead to an acquittal. Criminal law for
purposes of conviction – sentence may well be a different matter –
constitutes a set of norms applicable to sane adult members of
society in general, not different norms depending upon the
personality of the offender. Then virtue would be punished and
indiscipline rewarded: the short-tempered man absolved for the lack
of self-control required of his more restrained brother. As a matter of
self-preservation society expects its members, even when under the
influence of alcohol, to keep their emotions sufficiently in check to
avoid harming others and the requirement is a realistic one since
experience teaches that people normally do.

The court held that the appellant had been rightly convicted.

S v Henry 1999 (1) SACR 13 (SCA)

The appellant shot his ex-wife and her mother after an argument. He was
charged with inter alia two counts of murder and raised the defence of sane
automatism. The appellant alleged that whilst in a rage he heard shouting
and loud noises ringing in his ears. The trial court rejected his defence and
convicted him.

On appeal Scott JA said:

"By the very nature of things the only person who can give direct
evidence as to the level of consciousness of an accused person at

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the time of the commission of the alleged criminal act, is the accused
himself. His ipse dixit to the effect that this act was involuntarily and
unconsciously committed must therefore be weighed up and
considered in the light of all the circumstances and particularly
against the alleged criminal conduct viewed objectively. It is not
sufficient that there should merely have been a loss of temper.
Criminal conduct arising from an argument or some or other
emotional conflict is more often than not preceded by some sort of
provocation. Loss of temper in the ordinary sense is a common
occurrence. It may in appropriate circumstances mitigate, but it does
not exonerate. On the other hand, non-pathological loss of cognitive
control or consciousness arising from some emotional stimulus and
resulting in involuntary conduct, i.e. psychogenic automatism, is
most uncommon. The two must not be confused."

As there was no precipitating event the court concluded that the behaviour
of the appellant at the time and after the shooting indicated conscious
voluntary behaviour. His appeal was dismissed.

S v Cunningham 1996 (1) SACR 631 (A)

The appellant was charged with murder and attempted murder after driving
his vehicle on the wrong side of the road and colliding with two cyclists.
One cyclist was killed while the other was left paralysed.

The appellant raised the defence of sane automatism at trial but this was
rejected and it was held he had been negligent. On the count of murder he
was convicted of culpable homicide. He was acquitted on the charge of
attempted murder.

On appeal, the conviction of culpable homicide was confirmed. The

appellant appealed again. In the trial court an expert for the appellant

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argued that the most plausible explanation for his behaviour was
automatism. The expert for the state held that such an inference was not
justified.

Scott JA stated:

"Criminal responsibility presupposes a voluntary act (or omission)

on the part of the wrongdoer. Automatism therefore necessarily
precludes criminal responsibility."

The appeal judge stated:

"In discharging the onus upon it the State, however, is assisted by

the natural inference that in the absence of exceptional
circumstances a sane person who engages in conduct which would
ordinarily give rise to criminal liability does so consciously and
voluntarily. Common sense dictates that before this inference will be
disturbed a proper basis must be laid which is sufficiently cogent
and compelling to raise a reasonable doubt as to the voluntary
nature of the alleged actus reus and, if involuntary, that this was
attributable to some cause other than mental pathology."

Scott JA had accepted that before the collision the appellant was
emotionally upset and preoccupied. However there was no precipitating
event which acted as a trigger for his alleged automatism. The appeal judge
considered the manner of driving before the collision and held that there
was no evidence to displace the inference of voluntary conduct and the
defence was rejected.

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S v Francis 1999 (1) SACR 650 (SCA)

The appellant shot and killed his lover. Before the shooting he shot her
father in the elbow. The appellant was convicted of murder and assault with
intent to do grievous bodily harm. His defence of acting in a state of NPCI
was rejected.

Schutz JA states:

"He contends that he acted in a state of non-pathological criminal

incapacity ('sane automatism') with the result that either he was
unable to distinguish right from wrong or, if he could, that he was
unable to control his actions."

The judge equated sane automatism with NPCI. The expert called by the
state testified that certain actions of the appellant were indicative of an
awareness of what he was doing as some actions were purposeful and
complex. There were also a series of deliberate actions before, during and
after the event and he was able to distinguish his victims. His defence was
rejected.

S v Kok 2001 (2) SACR 106 (SCA)

The appellant, a policeman, shot and killed a colleague and her husband.
He was suffering from work-related stress and was in a depressed state at
the time of the shooting. When he arrived at the scene he was in a
confrontational and belligerent mood. He recalled going to the front door
and losing his temper due to something one of the deceased said to him.

Scott JA said:

"Loss of temper, that is to say a failure to control one's emotional

reactions, is not to be confused with a loss of cognitive control (see

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S v Henry 1999 (1) SACR 13 (SCA)at 20 d – f). The fact that he could
recall these events some days later indicates that he knew what he
was doing and is inconsistent with the hypothesis that he was re-
enacting some memory in a dissociative state."

The version of the appellant that he had no recollection of the shooting was
rejected as his behaviour after the shooting indicated that he had control
over his actions. The court rejected his defence.

10. Analysis

From the aforementioned judgments it is evident that before an accused

can escape liability on the basis of NPCI he must adduce evidence from
which an inference can be drawn that the act was not consciously directed
i.e. it was involuntary.

In Potgieter, Henry, Cunningham and Francis the defence of NPCI was

equated with sane automatism. These decisions indicate that the courts
approach the defence of NPCI with caution. In Henry the phenomenon of
NPCI is referred to as being "most uncommon." The normal inference that
people act consciously and voluntarily can only be disrupted in exceptional
cases. Wiid is the only case where the defence was upheld, as there was
doubt whether the appellant had the ability to distinguish between right
and wrong and to act in accordance with that distinction. She had
undergone severe and prolonged stress aggravated by the taking of
sedatives. The immediate circumstances prior to the shooting and the
concussion sustained were so extreme so as to persuade the experts and
the Court that there was reasonable doubt about her criminal capacity.

Thus the actions of the accused before, during and after the event should
be carefully examined together with any planned, goal-directed and

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focused behaviour. The accused must have been genuinely disoriented to

indicate temporary loss of cognitive control and involuntary behaviour. A
detailed recollection of events negatives a claim of loss of control.

Henry and Kensley demonstrate that in assessing a state of mind, conduct

must be weighed up against the surrounding circumstances, human
experience and social norms. A loss of temper cannot be confused with a
loss of control and conduct must be assessed against thousands who find
themselves in the same position but who react differently.

S v Arnold 1985 (3) SA 256 (C) was decided a year after S v van Vuuren
1983 (1) SA 12 (A). The accused shot and killed his wife and claimed that at
the time he was suffering from emotional stress and so lacked criminal
capacity. He had been stressed due to financial problems and a
deteriorating relationship with his mother-in-law. His wife had also stated
her intention to pursue a career as a stripper.

The accused alleged he could not recall aiming the firearm and pulling the
trigger but his description of events prior to and after the shooting was
detailed and precise. He had been shocked and remorseful after the event
and attempted to summon the police and an ambulance. Expert evidence
on behalf of the appellant argued that his mind was “flooded” by emotions
and therefore he was unable to appreciate the difference between right or
wrong. Due to his emotional state he may have lost the capacity to exercise
control over his actions. The state failed to call any expert evidence and did
not contest the opinions of the expert who testified in support of the
appellant.

Burger J concluded that there was reasonable doubt that the accused
acted unconsciously. The judge stated:

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"Assuming, however, that the accused was acting consciously, the

further question arises as to whether he had criminal capacity. A
person is said to be criminally responsible or to have criminal
capacity when he is able to appreciate the wrongfulness of his act
and act accordingly."

The judge intimated that a person can act consciously yet at the same time
not act in accordance with an appreciation of what is right and wrong. The
version of the accused was accepted by the judge without adequate weight
given to his focused and goal-directed behaviour before, during and after
the event. Thus the test for criminal incapacity was misapplied.

In S v Nursingh 1995 (2) SACR 331 (D) the accused shot and killed his
mother, grandfather and grandmother and raised the defence of NPCI. The
accused had a predisposition to emotional outbursts. Although there was
limited evidence about events leading up to the shooting, there were strong
indications that the accused had been sexually abused by his mother. It
was also possible he had rejected her advances immediately prior to the
shooting. The accused and his mother had argued before the incident. A
friend found the accused in a bewildered state after the shooting, at times
babbling incoherently. They both then fled the scene and devised a plan to
avoid implication.

The abuse that the accused suffered over a long period by his mother was
given a great deal of weight by the court. Expert evidence submitted that
due to the predisposition of the accused to having emotional outbursts
together with the sudden and immediate threat to him by his mother, in the
context of prior abuse, he may have entered into a state of altered
consciousness with a temporary destruction of his intellect. No expert was
called by the state in rebuttal. The court viewed the firing of the pistol as a
mere motor function and the accused was acquitted.

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Although the outcome of this case is problematic, there are certain

justifications for the judgment. There was clear evidence that the intellect
of the accused had been destroyed. His goal-directed actions were limited
to the multiple shooting. After the event he was incoherent and crying. The
trigger had built up over years of physical, emotional and sexual abuse and
the combination of these factors was extreme and unusual.

S v Moses 1996 (1) SACR 701 (C) is a problematic decision. The accused
and the deceased were in a homosexual relationship. Subsequent to
having unprotected anal intercourse the deceased informed the accused
that he had AIDS. In a fit of rage the accused attacked the deceased with an
ornament, thereafter using a small knife from the kitchen to stab him. He
then returned to the kitchen to obtain a larger knife to cut the throat and
wrists of the deceased.

The accused claimed that during the stabbing he saw what he was doing
but was unable to stop himself. After the event he attempted to remove his
fingerprints and clean the blood. He drove from the scene and gave a
hitchhiker a lift, unsuccessfully attempting to seduce him to create an alibi.
The hitchhiker testified that the accused appeared relaxed and normal. A
post-mortem examination confirmed that the deceased was HIV positive.

The accused testified that he had been sexually abused by his father. An
expert who testified for the accused stated that he was prone to rage and
had poor impulse control. When provoked he would know what he was
doing but was unable to stop himself. There was however no contention
that the accused had acted in a state of automatism. Another expert who
testified for the accused agreed and submitted that the announcement of
the HIV condition was a trigger to the conduct, which the accused related
to the sexual abuse by his father. The expert also testified that in a state of
rage the capacity to "retain control" is "definitely impaired".

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The expert for the state contended that one can never lose control except
in a state of automatism. Even in a state of extreme rage a person still
retains cognitive ability. After a state of automatism a person is usually
bewildered. The conduct of the accused was not uncontrolled or
involuntary and the killing was not committed in a state of automatism.
Each act was planned, goal-directed and controlled.

The court dismissed this view as being contrary to South African law. The
mistake made by the expert was that most of his evidence was directed at
showing that the accused had not acted in a state of sane automatism. The
court referred to Wiid, Laubscher, Campher and Potgieter as support for
the view that the defence of NPCI is distinct from that of automatism.

Another case that is difficult to explain is S v Gesualdo 1997 (2) SACR 68

(W). The accused shot and killed his friend. Their relationship had
deteriorated due to a business venture. They had argued in public and the
deceased had threatened the accused, resulting in the accused seeking
police assistance. Two days before the shooting the accused told the
deceased he would visit him at his factory.

Prior to the shooting the accused drove around aimlessly with his firearm.
He recalled arriving at the factory and breaking a machine but had no
memory of the shooting. A witness testified that the accused entered the
premises carrying a packet and pulled a firearm from it. The deceased
taunted and challenged him to fire. The accused shot and killed the
deceased. He was found several hours later wandering around and did not
appear to understand why he was arrested.

The court accepted that the accused was disoriented after the shooting.
The experts claimed that the accused suffered from amnesia but one expert

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for the accused was of the view that he retained some awareness of what
he was doing and he could distinguish between right and wrong but was
unable to act in accordance with that distinction as he had lost control of
himself. There was no contention that the accused acted as an automaton.
The expert called by the state testified that the accused had not acted as an
automaton as he was capable of taking complex decisions and his actions
were goal-directed.

The court rejected the view of the state expert as it was contrary to
decisions of that Court which held that persons who could distinguish
between right and wrong and who had not acted automatically may still,
due to emotional stress, have lost control of their actions to escape
criminal liability.

In South African Criminal Law and Procedure (Vol 1) by JM Burchell, the

author expresses his concern at the growing trend in courts to excuse acts
committed due to emotions such as jealousy and anger:

"The general approach in most legal systems is that provocation

does not excuse from criminal liability. People are expected to
control their emotions. Furthermore, in many cases the response to
the provocation is in the nature of a revenge for harm suffered. Since
it is a fundamental principle of modern systems of criminal justice
that vengeance for harm suffered must be sought through the public
criminal process and not by personal self-help, the criminal law is
precluded from admitting the provocation should be a justification
for unlawful conduct."

The decisions in Moses and Gesualdo appear to have moved from the
basic stance that provocation is a mitigating factor to one where it is an
exculpatory factor. Thus the approach adopted in earlier decisions was not

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followed. The acquittal in Moses is a dangerous precedent because now it

appears that whenever a person has a fit of rage and then kills, irrespective
of the reason for the rage, the killing will be permissible. This subjects
society to the whims of the irascible. If Moses is followed then those who
kill in circumstances of road rage can also expect to be acquitted.

Burchell and Hunt in South African Criminal Law and Procedure (2nd ed)
Vol 1 take the view that when dealing with involuntary conduct an accused
is exempt from criminal liability as criminal law does not recognise such an
act. All the circumstances must be considered to determine whether the
accused could not resist or refrain from acting or was unable to control
himself from refraining from committing the act.

Snyman in Criminal Law, at 152 - 153 states:

"The (a) inability to act in accordance with an appreciation of the

wrongfulness of the act (in other words the absence of the conative
mental function) must not be confused with (b) the inability of a
person to subject his bodily movements to his will or intellect.
Inability (b) deals with the question of whether X has committed an
act in the criminal-law sense of the word. If inability (b) is absent, it
means that X has acted involuntarily and that there was no act or
conduct as these terms are understood in the criminal law. An
example of this is where X walks in his sleep. The crucial question is
whether X is capable of controlling his physical (or motor)
movements through his will. On the other hand inability (a) has
nothing to do with the question of whether X has acted or not, but
forms part of the test to determine capacity. Here X does have the
power to subject his bodily movements to his will, but what he is not
capable of doing, is to properly resist the temptation to commit a
crime. In short, in (a) the mental power of resistance which a normal

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person has is absent, whereas in (b) the power or ability physically

to control one's bodily movements is lacking."

Inconsistent and confusing court decisions have added to the inherent

problems with the provocation defence. The court in Eadie attempted to
clarify the problem. However the decision appears to have added to the
confusion in two respects. Firstly, there is no clear distinction between
automatism and incapacity and secondly, it is implied that an objective test
must be used.

When assessing the distinction between automatism and NPCI, criminal

capacity appears to be aligned to conduct. This concerns the second leg of
the capacity test i.e. whether the accused was able to control himself in
accordance with his appreciation of right and wrong. Capacity will be
absent where the accused lacks self-control. However it remains uncertain
when self-control can be said definitively to be absent.

Nursingh and Moses add to the uncertainty. In Nursingh the court failed to
distinguish between capacity and intention. The test used for capacity is
also confusing. The judgment reads:

"Now, although the onus is on the State to show that the accused
had the necessary criminal capacity to establish and found the mens
rea necessary to commit an offence, where an accused person relies
on non-pathological causes in support of a defence of criminal
incapacity, then he is required to lay a factual foundation for it in
evidence, sufficient at least to create a reasonable doubt on the
issue as to whether he had that mental capacity."

In Moses the court drew a clear distinction between automatism and lack of
self-control. However there is no clear understanding of what lack of

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control means. It seems questionable to distinguish between automatism

and lack of self-control. If the two are different then it is possible to have
conscious control over an act (automatism test) but at the same time lack
self-control (incapacity test). If there is no distinction then capacity is
determined solely as to whether the person is able to appreciate the
difference between right and wrong. If an accused is shown to have
capacity then he may raise involuntariness as a defence. This would result
in a better principle to rely on.

There is no distinction between sane automatism and NPCI due to

emotional stress and provocation. When an accused had the ability to
appreciate the difference between right and wrong, to escape liability, he
would have to successfully raise involuntariness as a defence. Yet the
result is the same if his defence is that his mind had disintegrated to such
a point that he was unable to control his movements and he acted as an
automaton. His actions are unconscious and involuntary.

In South African Criminal Law and Procedure (Vol 1) General Principles of

Criminal Law (3rd ed) JM Burchell states:

"Modern western philosophy derives the notion of individual

responsibility from the doctrine of free will. This holds that all
humans are born with the ability freely to choose between different
courses of action. Having this freedom the individual a justifiably be
held to be responsible for the consequences of his chosen actions. It
follows from this that persons will only be held criminally liable if
their actions are determined by their own free will. This principle is
expressed by the requirement that for the purposes of the criminal
law, a human act must be voluntary in the sense that it is subject to
the accused's will. Where for some reason or another is deprived of

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the freedom of his will, his actions are 'involuntary' and he cannot be
held liable for them."

The words used by our courts to describe involuntary conduct are

mechanical activity, unconsciousness, automatic activity and involuntary
lapse of consciousness. It is therefore evident that voluntary conduct must
be regarded as conduct controlled by the conscious will. However, to argue
that an involuntary act has no connection to the mental element may be a
step too far.

It remains notionally possible that a person can retain the ability to

distinguish between right and wrong yet have no control over his actions.
Therefore the view taken in some decisions that the defence of NPCI is
distinct from a defence of automatism because NPCI is based on a loss of
control, due to an inability to restrain oneself or to resist temptation, can be
said to run contrary to any self-respecting system of law. Such a view
suggests that a person who gives in to temptation and loses control may
be excused from criminal liability.

Mitigating factors should be taken into account for sentencing. If an

accused kills in a goal-directed and focused manner, impelled by rage or
other emotion, whilst being able to appreciate the difference between right
and wrong and being able to control his actions, he cannot then claim that
during his act he lost his ability to control himself. In essence such an
accused is claiming that his uncontrolled act just happens to coincide with
the death of the person who prior to the act was the object of his rage.

Currently, the application of the provocation defence may lead to an

acquittal contrary to a common sense feeling of injustice. The courts are
too disposed to accept the version of the accused regarding his state of
mind. The courts should rather test this evidence against prior and

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subsequent conduct and against experience of human behaviour and

social interaction. This will assist in testing the truth of the evidence about
his state of mind to prevent unwarranted extensions of the defence.
Kensley and Henry adopted this approach.

Courts must apply principles consistently. Sane people rarely temporarily

lose cognitive control due to a combination of emotional stress and
provocation resulting in automatic behaviour.

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