Topic 4 - Causation - Contains lecture notes and case summaries PDF

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TOPI C 4 – Causation Introduction - Is there a causal nexus between X’s conduct and the unlawful result? - There is a two-part test (But for test) (application depends on either a commission or omission) - What is causation? We need to assume that X has acted and X’s conduct is unlawful. - Did the conduct of the accused cause the unlawful result in question? In order for the element of causation to be satisfied, one needs to answer these questions in the affirmative. - Definition – In a consequence crime (materially defined crimes), there is causal nexus between the unlawful conduct and the unlawful result if the unlawful conduct is both the factual and legal cause of the unlawful result. - There are 3 parts/requirements of causation 1. Relates to a consequence crime (materially defined crime) 2. Must be the factual cause Causal nexus must be 3. Must be the legal cause established - Consequence crime: These are criminal offences that relate to the crime being in the consequence of the crime, and not in the conduct of the crime itself. For example, murder or culpable homicide (how X is killed is irrelevant). - Conduct crime: these are also known as formally defined crime or circumstance crimes. This is where the crime is in the conduct of the crime. The focus is upon what X does, the consequences of X’s conduct is not important in deciding guilt. For example, rape or the possession of drugs. - General rule: Causation is an element of consequence crimes and not conduct crimes. Factual and legal causation - Causal nexus is made up of 2 types of causation, factual and legal causation (both need to be satisfied). 1. Factual causation – causal nexus in fact 2. Legal causation – causal nexus in law - The existence of only 1 type of causal nexus is not sufficient. - If we cannot establish factual causation, we don’t need to move on to legal causation. - SA law requires us to identify both factual and legal causation for causation to exist. - The enquiry always starts with factual causation. The test for factual causation - The test for FC is called the “But-for” test. - There are 2 versions of this test: 1) Conditio sine qua non (relates to commissions or acts) 2) Conditio cum qua non (relates to omissions or a failure to act) - But for X’s conduct would the unlawful result have happened? Was there a causal nexus between X’s conduct and the unlawful result?

Version 1 – CONDITIO SINE QUA NON -

Used when X’s conduct involved a commission. “the condition without which not” Involves hypothetical elimination. Was X’s conduct the condition without which the result would not have happened? But for X’s conduct would the unlawful result have occurred? - Eliminate X’s conduct and see what happens. When taking the commission away, does the unlawful result disappear? If YES, it means that X’s conduct was the FC – If NO, it means that X’s conduct was not the FC of the result - Was X’s conduct required for the unlawful result to happen? - For example: X punches Y in the fact, Y falls down and knocks her head and sustains a head injury which lead to a hemorrhage and to her death. If X did not punch Y would she have fallen, NO. Would the unlawful result have occurred, NO. This means that X is the FC. Makali 1950 (1) SA 340 (N) X had attacked V with a knife and the knife cut V’s left wrist. Because of V’s cut, he lost a lot of blood. V was taken to the hospital, while at the hospital he complained about a pain across his chest and later died. The doctor who treated V said the cause of his death was due to a heart attack. The court had to decide whether X’s conduct by slashing V’s wrist with the knife, was the FC of his death. The court applied the conditio sine qua non test. The court held that V would not have died but for X’s unlawful attack, the unlawful result would not have come about if X did not attack V (X’s conduct is the FC of V’s death). Version 2 – CONDITIO CUM QUA NON -

Used for omissions. “the condition with which” Involves hypothetical addition. Was X’s omission the condition with which the result would not have happened? Was X’s omission required for the unlawful result to have happened? - Assume X did act, does the unlawful act disappear? If YES, it means X’s omission is the FC – If NO, it means X’s omission was not the FC - Was X’s omission required for the unlawful result to have happened? Minister of Police v Skosana In this case Mr. Skosana had been arrested for drunken driving and causing an accident. He was placed in a police cell. After being arrested and while in the cell, he complained to the police officers, X and Y, that he had abdominal pains. They took him to the hospital, but they did not do so immediately there was a long delay before they took him. When Mr. Skosana arrived at the hospital he had to undergo an emergency surgery, he died not too long after. Mr. Skosana’s wife sued the Minister of Police for damages (delictual claim); she sued on behalf of her children and herself. She claimed that her husband’s death was a result of the police officers’ omission; she said if they had taken him to the hospital sooner he would have still been alive. The conditio cum qua non and the hypothetical addition was applied. The court said; assume that X and Y did take him to the hospital on time, would the unlawful act disappear? The court said yes, he would not have died but for the delay of the police officers. The court found that by omission, X and Y were responsible for Mr. Skosana’s death. They found in favour of Mr. Skosana’s wife for the claim of damages.

Van Heerden 2010 (1) SACR 539 (ECP) X was a specialist gynecologist. X performed a hysterectomy on V. V was 49 and a very fit women. The surgery went smoothly. She was placed in a recovery ward, however, later on during the day she started presenting problems. The nurse in charge of V saw that her BP was very low and her heart rate was very high. V displayed signs of shock caused by internal bleeding. X was not at the hospital at the time. The nurse phoned X and told X about V’s condition. He did not return to the hospital immediately because he was dealing with another problem, instead he spoke to the nurse and gave her instructions on how to deal with the situation. The instructions that he gave the nurse didn’t work and V died. X was then charged with culpable homicide. The issue was whether X actually caused V’s death, whether his failure to return to the hospital immediately after being aware she was not recovering well. The court applied the conditio cum qua non test and asked themselves, had X gone to the hospital immediately would V had died? They reached the conclusion that V would not have died and that X’s omission is what led to V’s death. V would not have died but for X’s omission. Thus found X guilty of culpable homicide. Ambit of FC - In order for causation to be satisfied, one needs to satisfy FC and LC. - However, often there is more than one FC of an unlawful result. - For example: X shoots V to death with a gun. Possible causes of V’s death:  X’s conduct  Conduct of A, B, C, D and E  Conduct of X’s parents Adam and Eve causation  Conduct of X’s grandparents (broad liability)  Conduct of Adam and Eve - We need something to limit liability, to narrow down CL.  LC offers a solution; it limits the wide ambit of FC.  It enables us to eliminate the factual causes that don’t really matter as far as liability is concerned.  Thus LC is all about identifying factual causes which are also legal causes.  LC is therefore essential to find true legal liability. Legal causation -

LC is very important because it limits the ambit of FC. It helps eliminate all the irrelevant types of FC that have been identified. Plays a critical role in limiting the causes of the unlawful result. LC is about finding and identifying the FC which are also the LC of the unlawful result.

Test for LC (PUBLIC POLICY TEST) - The public policy considerations are taken into account in establishing which Fc are also the LC of the unlawful result. - LC is decided according to public policy consideration. - We need to look at what would be reasonable, just and fair. We need to look at X’s conduct and the unlawful result, and what would be considered reasonable, just and fair in the circumstances. - What may be considered reasonable, just and fair in circumstance A, may not be the same in circumstance B. - What is considered reasonable, just and fair depends on the circumstances and facts of every case (to be decided on a case-by-case basis).

- As time goes by we are able to look back at how courts have decided other cases and that this is the role of judicial precedent. - In looking at other cases, it can help us identify how case B is distinguishable from case A. - Reasonableness, justice and fairness are the main criteria of the public policy test.  It is different in every case  Our courts will find that X’s conduct is the LC of the unlawful result, if the court is of the view that it is reasonable, just and fair to do so, considering public policy Mokgethi 1990 (1) SA 32 (A) Public policy test was confirmed by the Mokgethi case. In this case the full bench of the Appellate Division held that Lc must be dealt with in terms of public policy considerations. The court should use public policy considerations to reach a decision which is reasonable, just and fair, in the circumstances of each case - The public policy test of LC may seem and can be vague and unclear compared to the “but-for” test of FC. However, it is the only test for LC and it is a test that has been acknowledge and accepted, and is applied by the highest of courts in our country. - It is very important we recognise that it may be broad but that we understand this case (Mokgethi) has a grounding that gives us guidance. - It is important that we can turn to other cases, however in terms of apply the policy test, there are different forms of applying this test. S v Seemela In this case the issue of LC was raised. The facts were that X had shot Y 10 months prior to her death. The question was whether X’s conduct was the LC of Y’s death, whether X shooting Y resulted in her death. Some evidential issues were raised about whether an expert was required to provide some information relating to the cause of death. The court decided that X’s conduct was not the LC of Y’s death, what was cited as the cause was septicdemia with disseminated intravascular coagulopathy. The court decided that the cause of death was not sufficiently established to prove Y’s murder. The trial court was criticized for not obtaining certain information from one of the experts. On this basis it gave grave doubt as to whether the wounding of Y was the LC of her death. The court stated that although the GSW was an indispensable precondition to her death, the conviction of murder had to be changed to attempted murder. Evidence was missing to establish LC. - The purpose of this case (Seemela) is to give broad understanding of how LC would be looked at. - In this case it would not have been reasonable, just and fair of the court to decide that X’s conduct was the LC of Y’s death, because there was not enough evidence to indicate this. Applying the test of public policy - There are 2 ways to determine what is reasonable, just and fair: 1. Novus Actus Method 2. Adequate Cause Method

Novus Actus Method - Also known as the novus actus interveniens (new intervening act). - It involves an intervening act which interferes/severs/breaks that sequence or link between X’s conduct and the unlawful result. - NA is something unusual or abnormal. - The breaking of the chain is important; it speaks to the issue of intervening. It means that something has happened between what X did and the unlawful result. This intervening act says that X cannot be criminally liable because something abnormal intervened and broke the link between X and the unlawful result. - Definition: NA is an event which is, in the context of the act that was committed, abnormal and completely independent of the acts of the accused (found in the Lungile case). - NA is an unexpected, unplanned surprise event, which alters the course of things radically. - If there is a NA, the planned/anticipated result of X’s conduct is always different from the actual result because the NA intervenes to extent that it gives a result which is different. - In the presence of NA, X cannot be held criminally liable. - The FC of the unlawful result is not the LC because the NA has occurred and has changed the course of events. The unlawful result is not the anticipated result that X had in mind. - NA method is called the negative approach to LC. NA is a negative test because when a NA is established there is criminally liability on X’s part. - Criteria for abnormality: The criteria for abnormality are understood in terms of what the general human experience should dictate. The test for abnormality is in accordance with that of general human experience. If an event would be considered normal according to general human experience, it cannot be considered a NA. We rely on general life experience of humans to decide whether an event is a NA or not. Mbambo 1965 (2) SA 843 (A) This is an important case in terms of understanding how the NA method is used and how public policy is applied. In this case V was attacked by 2 individuals on different occasions, X and Y. First X attacked V with stones. V suffered a head injury, but was still alive after the attack. At a separate time, Y came along and stabbed V in the chest. The stabbing and the throwing of stones did not happen at the same time. V then died of the stab wound, so there is no issue with Y’s conduct that Y would be found guilty of murder. The issue was whether X could be liable for V’s death. According to the evidence the head injury may have killed V. The court decided however that Y’s conduct of stabbing was a NA. It was an abnormal/unexpected event between when X threw stones at V and the death. X’s conduct was not the LC of V’s death. The court decided that X was not guilty of murder but of assault GBH. Lungile 1999 SACR 597 (SCA) In this case X, who was 1 of 4 robbers, who went to a shop along a main road at 9am. X was armed. While X was in the shop a police officer arrived on the scene. A gun battle took place between X and the police officer. Both X and the police officer were injured, however, V, a shop assistant was also killed in the cross fire. X was charged with the murder of V. One of X’s defences was that his conduct was not the LC of V’s death. X argued that the conduct of the police officer was a NA which broke the chain of causation between X’s conduct and V’s death. X was able to raise this defence because there was some uncertainty about who shot V. The SCA chose to give X the benefit of the doubt and assumed that the police officer had in fact fired the shot that killed V. the court still rejected the defence on the basis that it decided that

the police officer’s conduct was not a NA. It was not an unexpected/abnormal event, because in a shoot-out there is a possibility of an innocent party being killed. Therefore, X was found guilty of murder. Adequate Cause Method - It is a positive test. - When an AC is established it means that X’s conduct is the LC of the unlawful result. - Ac is a cause that is good enough/satisfactory/sufficient. There needs to be a sufficient link between X’s conduct and the unlawful result. - When establishing an AC we are establishing that there is criminal liability for X, because X’s conduct is the LC of the unlawful result. - How to establish that the conduct is adequate: The criterion which is used is the criteria of general human experience. We look to see what is normal, expected or usual. We want to establish that X’s conduct would have been expected or normal to see it resulting in the unlawful result. - Definition: An act is a LC of a situation if, according to human experience, in a normal course of events, the act has the tendency to bring about that type of situation. Loubser 1953 (2) PH H190 (W) X hit V with a cane, with a big knob on the end. V had a deep gash on his head. V is a poor and uneducated farm worker. V’s employer saw the wound and advised V to go to the hospital. V refused and instead bandaged his head with dirty rags. He later contracted tetanus and died 2 weeks later. X was charged with culpable homicide. The question the court asked was whether X’s conduct was in fact the LC of V’s death. There was no problem with FC. LC was what the court needed to decided. The court used the AC method. The court asked whether V’s failure to go to the hospital was normal or expected in light of general human experience. It was normal for somebody who is poor and uneducated and works as a farm worker, to bandage himself as opposed to going to the hospital. X’s conduct was the LC of V’s death. X was found guilty of culpable homicide. Public policy and flexibility -

The true test for LC is the public policy test. The NA and AC method are instruments for applying the test of public policy. We have to look at circumstances where using the NA or AC method is not appropriate. In this situation the court is able to apply the public policy test in itself, without using the NA or Ac method. This is done in circumstances where the court feels that neither of these methods is appropriate in the present case. That it will not be able to reach a decision that is reasonable, just and fair, if it applies the NA or AC method. - The public policy test can be used purely on its own; this speaks to how flexible the test it. - The court is not compelled to use the NA or AC method.

Daniels 1983 (3) SA 275 (A) X and Y were passengers in the taxi driven by V. they were travelling on an isolated country road because X and Y had an intention to rob V. At some point V stopped the taxi, X and V became involved in an argument outside of the taxi. X drew his gun and V ran away, X then shot him twice in the back. Those shots were fatal. V would have died within 1 hour is he did not receive medical care. While V was busy dying, Y came and shot V in the head. V died immediately. X and Y wer charged with murder. There was not a LC issue when it came to Y, it was quite clear that Y was guilty of murder. There was a serious issue when looking at LC in relation to X’s conduct. The question was whether X’s shots in the back was the LC of V’s death, was there

a Legal causal nexus between X’s conduct and V’s death. X raised the defence that while Y’s shot constituted a NA, he should not be criminally liable because there is no causal nexus between his conduct and Y’s death. When a NA is established it breaks the chain between X’s conduct and V’s death, this means there will be no LC in relation to X, and that Y would be the only one held criminally liable. In this judgement there were 5 judges. There were different judgements in which they reasoned around LC. The first 2 judges, Nicholas and Botha, avoided the issue of LC. They simply said that X and Y were both guilty of murder in terms of the doctrine of common purpose. The DoCP doesn’t require judges to look at LC, if 2 people were involved in the murder both would be found guilty. The other 2 judges, Van Vincent and Jansen, rejected X’s argument that Y’s conduct was a NA. They said that Y’s conduct did not break the link between X’s conduct and V’s death. They held that public policy requires that X’s shots should be the LC of V’s death. X’s shots were fatal and it made V a sitting duck for Y. Even if Y didn’t shoot V, he was going to die anyway. The court found it reasonable, just and fair according to public policy to hold X criminally liable, he should be found guilty of murder. In relation to the second judgment, they did not use the NA or AC method. Their decision was based on the pure public policy test; it is about ensuring a reasonable, just and fair approach to LC. They found that X’s conduct was the LC of V’s death. The last judge, Trengrove, found that Y’s shot was a NA. He said that X was not guilty of murder but rather of attempted murder. Overall, 4 of the 5 judges were saying that X was guilty of murder and on that basis X was guilty of murder. Minister of Safety and Security v Venter ...