Actus Reus

 To qualify as conduct of which the criminal law will take cognizance, the conduct must be (1)
that of a human being, which was (2) voluntary. It may be (3) an act of commission or an
omission. If the conduct results in an unlawful consequence rather than consisting in an
unlawful circumstance, there must be (4) a causal connection between the initial voluntary
conduct and the unlawful consequence. Finally, the conduct, whether in the form of
circumstance or consequence, must be (5) unlawful.
 The prosecution must prove beyond reasonable doubt that the accused perpetrated the
requisite unlawful conduct.

 For criminal liability the actus reus and mens rea must exist at precisely the same time
(Contemporaneity rule); there cannot be a disjunction between the two.

Actus reus consists of:

1) Conduct
a) Act of commission, omission (failure to act) or a state of being that is prohibited
b) Voluntariness: and in the instance of it not existing at the critical moment antecedent
liability may arise
c) Causation: there must be a causal link between the voluntary conduct of the accused
and the criminal result. There must be both legal and factual causation.
2) Unlawfulness

Mens rea consists of:

1) Fault
a) Intention (dolus)
b) Negligence (culpa)
2) Capacity

Conduct
 “The law is not concerned with punishing persons with guilty minds unless such persons commit
an act of a criminal nature”
 Criminal law does not punish mere evil thoughts, and liability will only arise where the accused
has carried out an “act” or has failed to act where there was a legal duty (omission).
 Every crime is defined in terms of human conduct, and to constitute a punishable crime the
physical manifestation of the evil mind must take the form of the conduct that matches the
description in the definition.
 There must be a physical manifestation of an evil thought or intention for it to be punishable;
it does not have to be an overt manifestation: uttering words (incitement); agreement
(conspiracy) and combined with the fault element (dolus or culpa) it can be sufficient for
criminal liability.
 Slight overt manifestations of evil thoughts are sufficient to constitute a crime in the cases of
incitement and conspiracy.
 Although it is only human conduct which can be punished, there can be liability if a person
acted through the agency of animals or objects. It must be proved the person acted through
the animal or object then he/she will be charged as though he/she committed a crime (R v
Eustace 1948).

POSITIVE CONDUCT
There are several definitions that are offered for the human act:
 Involving a bodily movement in certain circumstances that brings about certain consequences

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  A muscular contraction that results from an operation of the will
 A bodily movement whether voluntary or involuntary.
 These definitions are unsatisfactory as they do not distinguish between circumstance and
consequence crimes, do not include omissions and do not account for conspiracy or utterance
of words.

 While acting positively in our law can attract liability, so can failing to act
 Omissions attract liability exceptionally because the general rule is that it is prima facie lawful
to fail to act, and omissions are only unlawful when there is a legal duty to act.
 (There are two components of unlawfulness: legal duty and grounds of justification)
 It is not only in the case of omissions that a legal duty arises, but also in the case of
commissions/positive acts where there must be a legal duty in order for it to constitute
unlawfulness.
 The difference is, in the case of acts, we presume there is a legal duty to act while in the case
of omissions the legal duty only arises from crystallized manifestations developed through the
common law and the boni mores.
 There is a laissez-faire, non-intervention philosophy in our law that persons should not
interfere with others, even if an interference would benefit another and the law does not
impose an obligation on us to act in favour of someone if that act involves a risk for ourselves
(autonomous individuals are responsible for their own well-being)
 In some countries there is a general duty to assist others but in South Africa it is prima facie
lawful not to assist someone even if they are in need.
 Example: A child in a shallow pool is drowning  a passerby does not have a legal duty to
act.
 However, there are exceptions to the general rule that omissions are not prima facie wrongful
which are derived from the ultimate test of unlawfulness: the legal convictions of the
community (boni mores) test, which is now informed by the values of the Constitution
(Carmichele v Minister of Safety and Security).
 Therefore, something is lawful unless it is deemed otherwise according to the dictates of the
legal convictions of the community.
 It is possible that a situation triggers more than one of these instances but in these situations a
legal duty will be recognized by the courts.
 The list is not closed or fixed because our courts could recognize additional legal duties as
informed by the Constitution, however the moral duty is taken more seriously now under the
Bill of Rights and the values of the Constitution; in fact it is unlikely that the courts would not
recognize a legal duty.

LEGAL CONVICTIONS OF THE COMMUNITY

 The standard of the legal convictions of the community is where judges get to exercise
discretion.
 The general rule regarding omissions in South Africa as expressed in Minister van Polisie v
Ewels is that a person is not under a legal duty to protect another from harm even though
he/she could easily or ought morally to do so.
 However, there are exceptions as immunity in this regard does not extend to all failures to act.
Generally, an omission is punishable where the person concerned had a legal duty to act, and
these instances of an existing legal duty have crystallized over the years.

CASE: Minister van Polisie v Ewels 1975, AD*

 Facts: The plaintiff was an ordinary citizen who was assaulted in a police station by an off-duty
police officer, in the presence of other police officers, including the sergeant of the officer
committing the assault.
 Issue: Was there a legal duty on the police officers that stood by to intervene and rescue the
plaintiff?
 Court held: “It appears that the stage has been reached where an omission is regarded as
unlawful conduct when the circumstances of the case are such that an omission not only
occasions moral indignation but where the legal convictions of the community require that the
loss suffered be compensated by the person who failed to act positively. When determining

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 unlawfulness, one is not concerned, in any given case of omission, with the customary
“negligence” of the bonus paterfamilias, but with the question whether, all facts considered,
there was a legal duty to act reasonably.”
 “When all circumstances are considered, I think that the duty of the policemen to assist the
plaintiff, was a legal duty, and that, because it was an omission which took place in the course
of duty of the policemen, the defendant is liable…”

What do the legal convictions of the community involve?

 It is a policy decision balanced with principles of fairness, justice, equity and reasonableness
 What is morally correct? It is usually for the judge to decide

OMISSION
 Omission is the failure to act positively
 General rule: omissions are not prima facie wrongful unless there was a legal duty to act
positively in the circumstances.

Liability for omission

 There must have been a legal duty on the accused to act.
 Even if a person is capable of doing something or in a position to stop an unlawful act, failure
to act does not mean there will be liability if there was no duty.
 The omission must be voluntary
 Example: Security guard is tied up while his principals’ belongings are being stolen. He
omitted to avert the theft but this omission was involuntary.
 To determine if omission is voluntary: look at the act and ask if the accused had chosen to act
would it have been positive? If yes, then the omission is voluntary.

 Liability for omissions arises from a legal duty to act and the instances in which such legal
duty has been noted and exceptions to the general rule are:

(1) Prior Conduct

 The omissio per commisionem rule: where a person has created a potentially dangerous
situation he/she is under a legal duty to prevent the danger from materializing.
 Example: Shift manager, smoking in a building where there is gas. He is aware that smoking
around gas may cause an explosion. The prior conduct is the smoking in highly flammable area
and if he does not prevent harm from occurring and a fire breaks then he will be liable.

CASE: R v Miller 1983

 The accused was squatting in another person’s house and lit a cigarette but fell asleep. When
he woke up he noticed the mattress was smouldering, but he did not take any measures to stop
the fire and went to sleep in another room. The house caught alight and he was convicted of
arson.

 Previously, prior conduct was the only situation in which a legal duty to act could arise but this
changed in Silva’s Fishing v Maweza and Regal v African Superslate wherein it was hinted there
were other instances giving rise to a legal duty:

CASE: Silva’s Fishing Corporation v Maweza 1957, AD

 Facts: A widow brought a dependant’s action against the owner of a fishing fleet for damages
alleged to have been caused to her through the defendant’s negligence which resulted in the
death of her husband. The engine of a vessel that the deceased an several others was on while
out at sea stopped working and despite that the defendant had knowledge of the vessel and
crew members being in distress he did not take reasonable steps to rescue the crew and the
ship was ultimately wrecked in a storm.
 Court held: “The owner of a fishing fleet has not only a moral but a legal duty to provide
adequate alternative means of propulsion or suitable means of rescuing the crew of a drifting

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 boat or both. The duty to rescue is not special or subject to peculiarly restricted rules. It is
simply a duty to act reasonably and such a duty may arise out of the circumstances of the
case. It will be for the court to decide in each case whether the circumstances are such as
to give rise to a legal duty.”

(2) Control of a potentially dangerous animal or object

 Where a person has assumed control of a potentially dangerous animal or object which may
cause harm, he/she is under a legal duty to take the necessary precautions to prevent it from
causing harm (act in the protection of third parties).
 This also relies on reasonable foresight
 Control of a potentially dangerous situation: Burchell states legal duty in this regard is
insufficient to give rise to liability since it would unjustifiably extend the scope of legal duties
and impose general duty.

CASE: S v Fernandez 1966, AD

 Facts: The accused was charged with culpable homicide owing to his negligence regarding a
baboon of which he was considered to have control and custody over. He retained the baboon,
an animal considered to be of the genus ferae naturae, which bit a child that later died.
Owners, or at least those persons in custody of wild, vicious animals, have an obligation to see
that the animal is not a danger to persons lawfully on the premises.
 Court held: It was held liability depends on negligence and the accused was negligent in not
taking sufficient measures to ensure the baboon was kept under control. The appellant was
aware that people, including children, frequented the vicinity such persons may be fatally
injured if the adult baboon was to escape; hence the appellant ought reasonably to have
foreseen death or serious injury would occur. Since the accused was aware of the baboon’s
vicious tendencies (indicated by him using a gun) he should have done more to protect others.
As he was negligent in not taking suitable preventative measures to guard against possible harm
from a dangerous animal, he was found guilty of culpable homicide.

 Wynberg Regional Court in 2001: held a dog owner guilty of attempted murder for failing to
ensure his dogs did not attack human beings.

(3) Special or Protective Relationship

 Where there is a special or protective relationship towards another there may be a legal duty
to take steps to prevent that person from harm, especially harm
 The accused could be found guilty of culpable homicide or murder, depending on which fault
element is satisfied.

Examples:
 A parent has a special relationship to protect his/her child, so if the parent is aware there is no
fence around the swimming pool and allows the child to play by or swim in the pool without
supervision and the child drowns, the parent is liable.
 A policeman is under a legal duty to protect citizens from being assaulted by others (including
other policemen – Ewels)
 Gaoler under legal duty to protect prisoners from being assaulted (Mtati)
 A policeman has a legal duty to obtain medical attention fro a sick or injured detainee
(Skosana).
 NOTE: The legal perception of police as protectors of society has received slight set back in
Kadir where the AD took the restrictive view that police were not responsible for assisting
citizens in civil matters and the primary duty is to maintain law and order and prevent, detect
and investigate crime.
 Conversely, since Carmichele v Minister of Safety and Security the Constitutional Court held
the police owe a duty derived from the Constitution to protect the public in general and
women and children specifically, from violent crime. This links to a common-law protective
relationship between the police and public as founded on a Constitutional duty.

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CASE: R v Chenjere 1960, FC
 Facts: The accused had been convicted of the murder of a child and appealed against the
conviction.
 Court held: (As an obiter): To cause death by inaction may be criminal if there is a positive
duty to preserve the life of the person in question. The duty arises where the potential
victim is helpless through infancy, senility or illness and the potential killer stands, either
naturally or through the deliberate acceptance of responsibility, in a protective relationship
to the victim. There was no natural relationship between the appellant and the deceased, but I
think that, by taking the mother and a child of that age (2-3) from the protection of the
natural guardian, husband and father, with the apparent intention of forming a new ‘family’
relationship of a permanent or at least prolonged nature, the appellant had deliberately
assumed a protective relationship towards both of them…”

CASE: Minister of Law and Order v Kadir 1995, AD

 Facts: Kadir was in a motor vehicle accident whereby the load of a truck traveling in front of
him came off the truck and it caused him to collide with the side of the road and he was
injured. The driver of the other vehicle had driven away but returned later to collect the goods
that fell of the truck. Police were there when he returned and a witness to the incident
informed the officer that was the one who caused the accident but they did not take any
details and did not pursue him.
 Court held: On the basis of civil action, the police have no duty to help a person in pursuing a
civil claim as there are more important obligations such as maintaining law and order and
investigating crime (s5 Police Act).
 Not said in the case: Leaving the scene of an accident is a criminal offense so the police had an
obligation to pursue the driver for that reason.

CASE: Mtati v Minister of Justice 1958

 Court found the prison warders have a duty to protect inmates from assault by other inmates as
the functions of the warders are really to prevent prisoners from escaping and to keep the
prison running smoothly.

(4) Public Office or Quasi-Public Office

 These relationships always follow in situations where persons have a legal duty by virtue of
their office
 Example: police officers; the calling occupied by policemen indicate a legal duty to act
 The nature of the accused’s occupation, particularly if he/she is a public functionary, is a
fundamental issue in determining liability for failure to act, especially where State liability is
in issue.

CASE: S v Gaba 1981, OPD

 Facts: The accused, a detective, was in the company of other detectives when a suspect was
interrogated as to whether he was a gangster known as the “Godfather”. The accused knew
that the suspect was the Godfather did not reveal this to his colleagues and he was
consequently convicted of attempting to defeat the administration of justice. The accused was
part of a group of detectives searching for, among others, the Godfather, and the Godfather
had been detained although the accused had not revealed his identity and he was released.
The accused argued that the crime of which he was accused could not by definition be
committed by an omission. Upon appeal:
 Court held: Whether in a particular instance a duty to act exists will depend on the
circumstances. According to the decision in Ewels, a legal duty may exist “whenever the
circumstances of the case are of such a nature that an omission attracts not only moral indignation
but also where the legal convictions of the community demand that the omission ought to be
regarded as unlawful”.
 The court found held that the legal convictions of the community required that a detective
should reveal such information to his colleagues because it led to the Godfather’s release
which thus hindered the police investigation.

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  The conviction of an attempt to defeat or obstruct the administration of justice was upheld,
due to his omission in that instance.

CASE: S v Madlala 1992, NPD

 Court was evasive about Madlala’s duty to inform the police, saying that the accused’s failure
to report a crime did not necessarily indicate the intention required to evade criminal justice
which would lead to conviction for being an accessory after the fact.

(5) Statute
 Liability also arises if there is a statutory duty to act:
 Police Act
 Domestic Violence Act
 Child Care Act / Children’s Act
 Financial Intelligence Centre Act (FICA)
 National Road Traffic Act
 Inquests Act
 Occupational Health and Safety Act
 The Constitution, which is now implicit in determining legal duty and the legal convictions of
the community

(6) Contractual Undertaking

 A legal duty may be assumed by agreement, express or implied.
 Example: A doctor performing an operation or treatment on a patient has a responsibility to do
everything reasonably possibly to maintain the patient’s life.
 A doctor has a common law duty to inform a patient of material risks involved in recommended
treatment or surgery

(7) State’s Duty to Protect Persons from Violent Crime

CASE: Minister of Safety and Security v Carmichele

 Facts: The accused had previously been convicted of housebreaking and indecent assault and
had a suspended sentence. Upon release, he attempted to rape another person.
 The investigative officer interrogated the accused and found there was a previous conviction
but did not make mention of this fact. The prosecutor also did not take it into account for the
accused’s proceedings. He held the man was not a danger to society. A member of the public
went to inform the police that he is a dangerous man, even the accused’s mother said her son
was a sexual deviant however nothing was done and as a result of him not being controlled he
raped the plaintiff. She sued on the basis that there is a relationship between the State/police
and citizens, and there is duty of care.
 Court held: The police owe a duty derived from the Constitution to protect the public in
general, and women and children in particular, form violent crime. There are constitutional
implications of the protective relationship between the state and individuals

 The legal duty to protect persons form violence has been acknowledged in three subsequent
cases:
 Minister Safety and Security v van Duivenboden – concept of “accountability” promotes
protection of fundamental rights
 Minsiter Safety and Security v Van Eeden – freedom from violence was protected by the
Constitution and this freedom required the State to protect individuals, especially women,
from violence.
 Minister Safety and Security v Hamilton – there is a need to protect a person’s right to bodily
integrity and security of person and this protective duty rests on the State

 BUT NOTE: Since the legal convictions of the community is now informed by the Constitution
there does not need to be a specific category of legal duty because it is now implicit in the
boni mores test that the Constitution and Bill of Rights be taken into account.

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  This is not a closed list however, and if a particular set of facts does not fit within one of the
above instances then the legal convictions of the community must be applied to determine a
legal duty to act and hence liability for an omission.

MERE SITUATION / STATE OF AFFAIRS

 Prima facie a “state of affairs” does not involve an act in the sense of conduct controlled by
the accused’s will; neither commission or omission are required for liability.
 There are instances where there is no act but one can be liable for a situation / state of being
which is sometimes punishable by statute:
o Possessing drugs, child pornography and being drunk in a public place.

CASE: R v Larsonneur (UK case)

 The accused was found to be in another country unlawfully and deported to England. While in
England she was charged for being there unlawfully and convicted. The prohibited situation in
England without the required documents was because she was deported there; it was no fault
of hers that she was there.

 The way around this is to take the view recommended by de Wet and Swanepoel, Visser and
Vorster and Burchell: it is not enough that a mere prohibited situation exists.
 The accused must have either done something to bring the state of affairs about or failed to do
something to terminate the situation within a reasonable time, or prior conduct on his/her part
which created the situation.

CASE: R v Achterdam 1911

 The accused got completely drunk while sitting in a police officer’s garden. The police officer
dragged him outside on to the road and arrested him for being drunk in public. However, the
accused had done nothing to bring about that situation of being drunk in public.

CASE: S v Brick 1973

 The accused received unsolicited pornographic material and all such material was prohibited at
that time. He did not report it or get rid of it however, and his failure to expeditiously end that
prohibited situation led to his liability.

The mere situation is not punishable, unless:

1) The accused failed to do something to end the situation
2) The accused created the situation.