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CRIMINAL LAWSTUDY NOTESTOPIC 4: Causation Defintion  'In a consequence crime, there is a causal nexus between the unlawful conduct and unlawful result if the unlawful conduct is both the factual and legal cause of the unlawful result' Aspects  consequence crime (outcome of what X as done)  factua...

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CRIMINAL LAW STUDY NOTES

TOPIC 4: Causation Defintion 

'In a consequence crime, there is a causal nexus between the unlawful conduct and unlawful result if the unlawful conduct is both the factual and legal cause of the unlawful result'

Aspects 

consequence crime (outcome of what X as done)



factual causation (causal nexus in fact)



legal causation (causal nexus in law)

Test for factual causation 

'but-for' test



two versions o

o

conditio sine qua non/condition without which not 

hypothetical elimination of commission



Makali 1950 (1) SA 340 (N) 

X attacked v with a cane knife and slashed V's left wrist and lost a lot of blood



V complained of pain in chest and later died



doctor said that the cause was a heart attack



court stated that V would not have died if act did not take place and X's commission was therefore required

conditio cum qua non/condition with which 

hypothetical addition of ommission



Minister of Police v Skosana 1977 (1) SA 319 (A) 

Skosana was arrested for drunken driving and was in a cell





complained of abdominal pain to X and Y



there was a few hours delay before he was taken to hospital and was taken into emergency surgery but died shortly after



wife sued MOP for damages for herself and her children and argued that if they took him sooner, he would not have died and the death was caused by the Police Officers' ommission



the court used the test and held that V would not have died and by ommission, X and Y were liable

Van Heerden 2010 (1) SACR 539 (ecp) 

X (obstitrition and gynocologist) performed hystorectymy on V (47 year old fit woman)



V was placed in a recovery ward o

later on began presenting problems

o

nurse saw that her BP was very low and heart rate very high

o

possible signs of shock caused by interna bleeding

o

surgeon was away attending to another matter

o

nurse let him know and gave her instructions on how to deal with the matter but the instructions did not work and she died



charged with culpable homicide



court used the test and held that V would not have died and X's ommission was required

Ambit of factual causation 

often more than 1 factual cause of unlawful result



legal causation narrows down from person who acted, their parents, their grandparents, adam and eve



we need legal causation to eliminate factual cause

Test for legal causation...public policy test 

what would be considered to be reasonable, just and fair



Mokgethi 1990 (1) SA 32 (A) o



full bench of AD held that LC must be dealt with ito public policy

Seemela 2016 (2) SACR 125 (SCA) o

X shot Y 10 months prior to death

o

was X's conduct the reason? 

wounding was critical but not the reason

o

court decided that X's conduct was not the reason for the death

o

Trial court was criticised for not obtaining some information

o

X was not found guilty of murder because there was insufficient evidence to prove death

Applying the test of public policy 



two ways of doing so o

novus actus method

o

adequate cause method

novus actus method o

novus actus interveniens...new intervening act 

o

an abnormal event that comes between X's conduct and the unlawful result and breaks the chain

Lungili 1999 (2) SACR 597 (SCA) 

'an event which is, in the context of the act that was committed, abnormal and completely independent of the acts of the accused'



X was 1 of 4 robbers who were armed with a gun



went to a shop and while in the shop, a policeman arrived



shootout and both injure



V (shop assistant) was killed in the crossfire



X charged with murder



Defence





his conduct was not reason



conduct of police office was NA

SCA gave X the benefit of the doubt and rejected defence 

 o

Court found no NA and found X guilty

Mbambo 1965 (2) SA 843 (A) 

V was attacked by 2 individuals, X and Y at two separate times



X attacked V by the use of stones and suffered head injuries but was still alive



Y then stabbed V in the chest and V died of the stab wound



Could X be liable for v's death? 

 o 

PO shooting was not NA because it was always a possibility

Y's conduct of stabbing was a NA

liable for bodily harm but not murder

presence of NA= absence of LC

adequate cause method o

good enough/sufficient/satisfactory

o

rule: 

presence of adequate cause = presence of LC

o

criterion of adequacy = general human experience

o

Snyman: 

o

'an act is a LC of a situation if, according tohuman experience, in a normal cause of events, the act has the tendency to bring about that type of situation'

Loubster 1953 (2) PH HI90 (W) 

X hit V over the head with a cane



V is a poor farm worker



V's employer told V to go to the doctor and V refused



V put a bandage on using dirty rags





He got tetnis and died 2 weeks later



court asked if V's conduct was normal and the answer was yes and X's conduct was the legal cause

Public policy and flexibility o

true test for LC=public policy

o

NA and AC are instruments of public policy

o

pure public policy method can be found in Daniels

o

Daniels 1983 (3) SA 275 (A) 

X and Y were passengers of taxi which V was driving on an isolated country road



X and Y intende to rob V



V stopped the vehicle, X and V become involved in an argument



X pulled a gun on V



V ran away and X fired 2 shots which were fatal (back)



Y then shot V in the head and died immediately



X raised defence that Y's shot was NA



The first 2 judges (nickolas/botha)





both guilty itwo common purpose



didnt consider LC

Other 3 judges 

rejected X's argument



Y's conduct did not sever the relationship



held that pp (public policy) required that X's shot should be LC



X made V sitting duck for Y



irrespective, V would've died



court found it responisble, just and fair to hold X criminally liable



judge Greengrove

 o



guilty of attempted murder and not murder



the link was severred by Y's shot as NA

4/5 judges found X guilty

Minister of Safety and Security v Venter 

X and Y were married and ahd 2 children



marriage broke down and divorced



V (wife) and children moved in with Venter



X was jealous, sent threatening messages on threat to kill Y and Venter and burn down Venter's house



V enter and Y went to police on 3 occassions and police said that they could not do anything unless X took action. On the tird ocassion, the police opened a docket but did not take further action



X forced one of the windows to the house open and damaged items and raped Y



Venter came home and X shot at Venter



Venter fled but a bullet hit his arm



police arrived and arrested X



Venter and Y instituted a claim against Minister for damages



Suffered harm at hands of X because of police's ommission ito Domestic Violence Act 116 of 1998



Duty included rights an protection order



ommission was the factual cause



court made use of pp approach 

ommission was the cause of harm



minister 75% liable



Venter and Y 25% negligent

Special aspets of legal causation 

special rules





o

thin skull rule

o

encouragement of suicide

o

medical treatment

thin skull rule...talem qualem rule o

abnormal physiological conditions

o

thin skull expresses pulic policy

o

'take the victim as you find him/her'

o

Wilson v Birt (Pty) Ltd 163 (2) SA 508 (D)

o

Mckechnie (1992) 94 Cr. App. R. 51

encoragement of suicide o

o

X either 

encourrages V to commit suicide



provides means to commit suicide

Ex Parte Minister van Justisie: re S v Grotjohn 1970 (2) SA 355 (A) 

SCA was asked the following questions 

is encouraing/assisting someone to commit suicide a crime?



if yes, which crime?

o

Euthanasia is not allowed in our law

o

Minister of Justice and Correctional Services and Others v Estate Late James StrahamFord and Others 2017 (1) All SA 354 (SCA)

o

Grotjhon case 

gained clarity here in 1970



X and V were a married couple



V was cripple and became depressed



X handed V a loaded gun and told her to shoot herself if she wished to because she was a burden



V killed herself and X charged with murder



In trial court X was said to be not guilty



MOJ used case to get appeal court to answer questions



MOJ used s333 CPA 51/1977 because it allowed him to pose these quetions to the court





is encouraging someone to commit suicide a crime?



if yes, which crime

Chief Justice Steyn concurred with 4 other judges 

suicide is not a NA



3 possible crimes o

 

murder, attempted murder, culpable homicide

guilty of murder

Meedical treatment o

o

2 categories 

conduct of medical staff



conduct of victim

conduct of medical staff 

how do we decide whether medical treatment was proper or improper? 



2 aspects one needs to look at: o

bona fide...fatal

o

mala fide...not fatal

bona fide medical intervention 

general rule is that bona fide medical intervention is not a NA



medical treatment may have been wrong or doctors may have made a istake o

but bona fide is a genuin mistake





doctors may have been negligent/grossly negligent but if it is done in good faith, it is not a NA



nature of wounds o

fatal injuries in bona fide medical treatment is never NA

o

non-fatal in bona fide wrong treatment. wrong treatment is LC of death and not a NA as there are two causes for the same death and both dotor and Xis liable

mala fide medical intervention 

basic rule is that the wrong treatment given deliberately can be a NA and medical treatment breaks the chain



nature of wounds o

o



injuries are fatal 

going to die anyway



wrong treatment is not a legal cause and not a NA



2 causes for death

non-fatal injuries 

treatment is a NA



doctor liable for V's death



X is liabl for a lesser offence

Counter 2003 (1) SACR 143 (SCA) o

X wanted to kill his wife, V

o

X shot V in the backside on the left

o

bullet penetrated her anal canal and she was taken to the hospital

o

the wound was serious but non-fatal and she would've recovered with the correct treatment

o

medical staff at the hospital did not realise the seriousnes of her condition

o

the propblem was discovered a week after she was in hospital



o

V had no symptoms usually associated with such a condition

o

the wound became infected and v died of pneumonia

o

X was charged with murder

o

X's offence was that his bullet did not cause V's death

o

the court rejected the argument and held that the hospital was not negligent. the infection progressed 'surreptitiously' and by the time it was discovered, it was unstoppable. the conduct of the hospital did not constitute a NA and X was guilty as charged

Tembani 2001 (1) SACR 355 (SCA) o

X shot his girlfrined in the chest

o

the wond was serious but not fatal

o

V ould've survived if she received proper medical treatment

o

she was taken to hospital but did not receive proper treatment because the doctors and nurses were negligent

o

the wound became septic and V died 14 days after admission and X was charged with murder

o

X argued that the negligence of the medica staff was a NA

o

court rejected this argument

o

X had inflicted on 'intrinsically fatal wound' upon V

o

there was always a risk that V would die if she did not receiv proper treatment

o

Sa proper medical treatment is not readily available to everybody

o

failure of the hospital to give proper medical treatment cannot be seen as NA

o

yes, the hospital was clearly negligent but negligence did not break the chain of causation

o

Why is Tembani important? 

it suggests that our court will not easily accept improper medical treatment as a NA

o



not even gross negligence on part of hospital will automatically qualify as a NA if the wound was 'intrinsically fatal'



it hears that improper medical treatment will operate as a NA only if such improper treatment is mala fide

conduct of the victim 



2 things can happen 

V decides not to obtain treatment



V obtains treatment but fails to follow medical advice

Mokgethi 1990 (1) SA 32 (A) 

X and Y robbed the bank where V worked as the bank teller



X shot V in the back during robbery



V became paraplegic



althogh in a wheelchair, V's health improved sufficiently for him to return to work



after 6 months, V was re-admitted to hospital with pressure sores and septicaemia



V died



X and Y charged with murder



Van Heerden JA formlated general test of such cases o





negative test...3 part test

X's condut was not LC of V's death if o

Immediate reason for V's death was his failure to obtain teatment/follow advice

o

V's wounds were not fatal and no longer fatal at time of death

o

V's failure to obtain treatment/follow advice was objectively unreasonable in the circumstances

applying the test o

immediate reason was pressure sores









o

V's wounds were not fatal

o

V had high education, job, lived in favorable circumstances and therefore, the failure to adhere to advice was objectively unreasonable



X's shots were not LC



X and Y not guilty of murder but attempted murder

Refusal of medial treatment 

courts ave not given a definite answer



only opinions of writers

Burchell 

suggests that thin skull rule an be extended to this kind of case



X to take V as he finds him, including religious convictions



Burchell wants thin skull rule extended from physiological conditions to belief systems



if this happens, X wil not be able to argue that V 's refusal on religios grounds is a NA



X's condut will be th legal cause of V's death

Snyman 

unlike Burchell, he argues that X should not automatically be held liable



thin skull rule should not always apply



depends on whether V's refusal is reasonable/unreasonable



unreasonable...NA

Blaue (1975) 3 AER 446 

X stabbed V



knife pierced her lung and she needed a blood transfusion



V was a Jahovah witness and refused transfusion on religious grounds



she died



X charged with manslaughter





his defence was that V's refusal to be treated was a NA because it was unreasonable



court rejected his defence and applied thin skull rule



X was guilty as charged



English court extended thin skull rule to include religious beliefs



Burchell supports and Snyman opposes

Solving problems of causation 

double investigation o



factual cause o



end of matter

if factual cause established o



CSQN/CSQN test

no factual cause o

