James Grant

Several attempts have been made to justify the decision of Judge Masipa to acquit Oscar Pistorius of the murder of Reeva Steenkamp. Regrettably, in my view, none of them are successful.
Burchell* falls into the same wishful thinking errors of Taitz and Cibane, and logical error as Masipa.
Burchell (and Taitz**) observe, correctly, that the (original) Pistorius defence was putative private defence. This is the defence that one mistakenly believes that one is entitled to act in private defence. If the accused makes this mistake, whether he is mistaken about the facts, or (as Burchell correctly adds) the law (De Blom 1977 AD), the accused cannot be convicted of murder. This is because an accused who is mistaken in this way has no intention to act unlawfully. Putting it positively, the accused believes s/he is acting lawfully. The enquiry is entirely subjective – what did the accused actually think or forsee. It is, as indicated, a complete defence to murder. This defence required that Masipa asked whether the accused foresaw the possibility that his conduct could unlawfully kill.
The problem is that, after specifically stating that she was turning her attention to this defence (of putative private defence), she erroneously states that the question is whether the accused foresaw that his conduct could kill [fullstop]. As discussed, this is not the right question.
It does not make her decision right to say, as Taitz and Burchell argue, that if Masipa had asked the right question, she would have (possibly) arrived at the same or right conclusion. We cannot know what conclusion she would have come to if she had asked another question.
Then there’s the problem of error in objecto and dolus eventualis. Error in objecto describes a scenario in which, as Burchell explains: “In terms of this rule, if A intends to kill B and shoots and kills C, whom he mistakenly believes to be B, then A’s mistake as to the precise identity of his victim is irrelevant and he could be liable for the murder of C.”
It is worth noting that there is no mention of the reason why A thinks that C is B. This is in line with our settled law, that takes no account of the reason why A makes his/her mistake. If identity is irrelevant, the reason for any error as to identity cannot be relevant. The identity of the actual victim is irrelevant as is, necessarily, any reason for a mistake as to identity.
Both Masipa and Burchell correctly observe that the facts of the Pistorius case disclose a scenario of error in objecto – in which the identity of the victim is irrelevant.
It is notable also that the defence never argued that the accused had not intended to kill – but only, perhaps, at most, intended to injure. This too would have been a valid defence against murder, but it was not a defence claimed, and certainly not one – from the wording of her judgement – relied on by Masipa as a basis on which to acquit the accused of murder. I don’t see how it could possibly make Masipa’s judgement right to refer to a basis on which she could have relied, but did not.
It is possibly also worth mentioning that her judgement did not turn on a finding – that was crucial in the Humphrey’s case (2013 SCA) – that, although the accused did forsee the possibility of killing whoever was behind the door, he did not accept that risk.*** Again, that would have been valid basis (on our law as it stands) to acquit the accused of murder. However, from the wording of her judgement, this was not the reasons she gave for acquitting the accused of murder.
Returning to what Masipa actually said, and how she actually reasoned. After noting that, in error in objecto scenarios, the identity of the actual victim is irrelevant, she asks what she says is required by the test of dolus eventualis (legal intention): Did the accused forsee the possibility of killing the deceased. This is the wrong question for two reasons. As discussed above, the accused’s defence was that he did not intend to unlawfully kill anyone. This focus – the very basis of the defence of putative private defence – is lost. But, putting that aside, secondly, it is wrong because it deviates from, even contradicts, the recognition that the facts disclose an error in objecto scenario and that the identity of the victim is irrelevant. The question then, correcting also for the defence of putative private defence, should have been: did the accused foresee the possibility of unlawfully killing whoever was behind the door.
Again, it does not help to say this cannot be true because he thought the deceased was in the bedroom. This is the argument that Masipa seems to have finally settled on – and it is fatally flawed in logic. She says: the accused could not have forseen the possibility of killing the deceased, or anyone else for that matter, becuase he thought the deceased was in the bedroom. The fact that the accused thought that the deceased was in the bedroom says nothing about what he thought about the presence of someone else in the toilet. Indeed, it is his defence that he believed someone else was in the toilet.
Burchell perpetuates this error in logic. Referring to his scenario in which he notes that it is irrelevant that A intends to kill B, but kills C, he argues that there can be no intention to kill C if A had excluded in his mind the possibility that the person he thinks is B, could be C. But this is the definition of an error in objecto scenario – let’s take this slowly:
A intends to kill B.
He does not intend to kill C, but B.
He thinks that B (the human body) is, well, B.
In thinking that B is B, he does not think that B is actually C.
So thinking that B is B and not C, he has excluded in his mind, the possibility that B is C.
This is the definition of an error in objecto scenario and there is no dispute that the identity of the actual victim is irrelevant. That is, it cannot help the accused that he thought that B (the human body) was B – where he did not think that B was C. Therefore, it cannot assist an accused who has excluded from his mind the possibility that B is C.
Importantly, the reason for any errror as to identity is also irrelevant. It cannot help an accused who thinks that B is B because B is not C. Our law is clear, in error in objecto secanrios, identity is irrelevant, and it remains irrelevant no matter what an accused’s reasons are for making a mistake as to the identity of his victim.
Masipa’s error was similar. In her view the accused could not be convicted of murder because the accused did not forsee that he could kill C (or B), because he thought C was in the bedroom. In that case, it leaves him thinking that B was in the toilet. As we know from the rules of error in objecto, it is no defence to say that he thought that B was B, and not C.
In conclusion, we have seen several attempts to justify Masipa’s judgment, all of which seem to fail. It does not make Masipa’s judgment right to pretend that her reasons were reasons that would make her judgement right: that she decided that the accused had not accepted the risk of killing the deceased, that she recognised putative private defence, or that she found that the accused only intended to injure the intended target. These were not her reasons and, however valid they may be, it doesn’t help to pretend that they were her reasons. It also doesn’t help to attempt to justify the distortion of our law on dolus eventualis applied to error in objecto and the logical error made by Masipa. The law on error in objecto is clear. Identity is irrelevant – for that very reason it cannot help the accused if he thought that it was B behind the door; nor can it help an accused who argues that he thought that it was not C. The identity of whoever was behind the door remains irrelevant. There appears to be nothing to save us from the inevitable conclusion that Masipa made errors of law and logic.
* http://m.bdlive.co.za/opinion/?articleId=339191.
** “Judge Masipa was right on Dolus and murder http://bit.ly/1wGgNdm”.
*** See Cubans B. , JUDGE MASIPA GOT IT RIGHT: Oscar Pistorius and the intention to kill http://shar.es/1aWktC via @thelawthinker.

While Masipa J has delivered judgement in the Pistorius case, there appear to be errors of law in her judgement. These errors of law may allow the prosecution to appeal.
Many commentators are saying that Masipa’s mistake was to misconceive the form of intention in our law known as dolus eventualis. A careful analysis reveals that the apparent error relates only partly to dolus eventualis. Instead, the apparent error related to how Masipa conceived of dolus eventualis as related to a far more complex issue in our law: the difference between the scenarios of error in objecto and aberratio ictus. It is only by understanding these scenarios, and the settled law on these scenarios, that one can understand where Masipa appeared to go wrong.
After dismissing the prospect of premeditated murder, Masipa turned her attention to whether Pistorius was nevertheless guilty of murder.
She indicated that this required that she deal with the defence argument that a conviction in the circumstances would require that the court revive an old doctrine rejected from our law: transfered intent. The spectre of this is daunting – because to understand that this doctrine is not in question, one must understand what it is, what it is not, and why it doesn’t apply. Correctly Masipa identified that this required an analysis of two scenarios in criminal law: error in objecto and aberratio ictus. Anyone who tells you these are easy to understand, probably hasn’t understood them. At its essence, scenarios of error in objecto (or where one is dealing with a person, error in persona) relate to circumstances in which one strikes/shoots at a particular object/person and one hit one’s target. If you have aimed at a human being (a particular human body), and you hit and kill that human being, you cannot argue that you thought that the person you killed was John, whereas, in fact, it was Peter. This (error in objecto/persona) is irrelevant.
Aberatio ictus on the other hand means “going astray of the blow” – and ultimately describes scenarios in which one misses one’s target. This is crucial because it is the essence of the distinction between scenarios of error in objecto and aberratio ictus. It is an aberratio ictus scenario where one aims and shoots at someone (John), but misses that person and strikes and kills another (Peter). The question arises whether this mistake is material and can form the basis of a defence.
In these scenarios, our law used to refuse to recognise that this mistake could possibly be a defence. It used to simply regard your intention to kill John as “transferred” onto Peter. Hence, “transferred intent”. Our law has shifted and rejected this transferred intent approach. It is now possible on our law to rely on this mistake as a defence against a murder charge in respect of Peter – but only if there was no other form of intention that actually fell on Peter. That is, our law will allow you to be convicted of the murder of Peter, if, while you intended to kill John, you also had intention in respect of Peter – such as perhaps dolus eventualis – you foresaw the risk of missing John and killing Peter, accepted the risk and proceeded. (For further discussion of the meaning of these two scenarios and the difference between them, please see http://wp.me/p3efQr-2)
Lets consider into which scenario the facts of Pistorius fits. Did Pistorius miss his target? No, he did not. He aimed at a particular human being and shot and killed that human being – whoever was behind the door. There can be no question that this is a scenario of error in objecto and that the identity of the person behind the door was irrelevant.
Masipa discussed these scenarios, correctly stated the law, and correctly identified that we (on the facts of the Pistorius case) are dealing with a scenario of error in objecto – in which (in the relevant sense) the identity of the victim was irrelevant. That is, it doesn’t matter who was behind the door. The significance of all of this is that it has direct implications for the way in which one enquires whether an accused had intention or not.
Then the first sign of trouble appeared. After turning her attention to the accused’s defence of putative private defence, Masipa stated that the question was: “whether the accused intended to kill.” Immediately it becomes apparent that there was a misconception regarding the nature of the defence of putative private defence. It is not the question of whether the accused intended to kill,  but whether he intended to unlawfully kill.
The question of whether the accused intended to unlawfully kill is the question of whether the accused believed he was under attack and entitled to resort to force in defence. This question was not engaged with. The question the judge pursued was whether he intended to kill.
At that point it seemed Pistorius was bound to be convicted of murder – given that there seemed little question that he did intend to kill whoever was in the toilet – despite his defence of putative private defence. But the judgement took another strange turn.
“I now deal with dolus eventualis or legal intent. The question is:
1. Did the accused subjectively forsee that it could be the deceased behind the toilet door;
2. Notwithstanding the foresight, did he then fire the shots, thereby reconciling himself to the possibility that it could be the deceased in the toilet.
The evidence before this court does not support the states contention that this could be a case of dolus eventualis. On the contrary, the evidence shows that, from the onset, the accused believed that at the time he fired the shots into the toilet door, the deceased was in the bedroom, while the intruders were in the toilet.”
She repeats this again twice: did he forsee the possibility of killing the deceased – although, on the third occasion coming closer to what ought to have been addressed: whether the accused foresaw the possibility of killing whoever was behind the door. She says, on the third occasion, that the accused did not forsee killing “the person behind the door, let alone the deceased, as he thought she was in the bedroom at the time”. But accepting that the accused thought that the deceased was in the bedroom does not exclude the possibility of there being someone else behind the door. Indeed, ironically, that is his own version: that he thought there was someone else behind the door. Applied to the undisputed law on error in objecto where one mistakes one person for another – which is immaterial – the question ought to have been: “did the accused forsee the possibility of killing whoever was behind the door”. This is an entirely different question which,  in turn,  begs the question whether the accused must have, and by inference did, forsee that he would kill whoever was in his toilet by firing four shots through the door.
It is true that, on day two of her judgement, she referred to several authorities on how one may reason to a finding of dolus (intention). These authorities make the valid point that one must be careful not to conclude that just because a reasonable person would forsee something (death of someone for our purposes), that the accused did. This is the usual and well founded caution against a logical error of thinking that just because something should be true, doesn’t make it true. Just because someone should have realised something doesn’t mean s/he did realise it.
She also summarised her findings and, in reference to dolus eventualis, said that “this court has already found that the accused cannot be guilty of murder dolus eventualis on the basis that, from his belief and conduct, it could not be said that he forsaw that either the deceased, or anyone else for that matter, might be killed when he fired the shots at the toilet door.” Regretably this takes things no further because it is a bare conclusion without the all important reasons for this statement. We are left having to rely on the reason she provided previously in her judgement – that he did not forsee killing “the deceased or anyone else for that matter” because, as she said previously, the accused thought that the deceased was in the bedroom. As discussed above, a belief that the deceased was in the bedroom does not exclude someone else being in the toilet and this is exactly what he believed, on his own version.
What is also revealing is that, on a defence of putative private defence, even if a court accepts that the accused acted in putative private defence (mistakenly believed he was under attack and was entitled to resort to force in defence), the problem of how much force in defence arises. It is not the question of whether the extent of force actually used was allowed, because, given that there was no attack, no force at all would be allowed. The question – a very necessary question – becomes, did the accused foresee that he was not allowed to resort to that extent of force. Masipa ought to have asked, if she engaged properly with a defence of putative private defence, whether, not only was the accused mistaken, but was he so mistaken that he could have believed he was entitled to fire four shots through a door at an intruder. The court could have gone either way on this, but that is not the point. The point is that this is another reason to think the Court did not properly engage with the defence of putative private defence.
On the charge of unlawful possession of ammunition Masipa seemed to conflate the mental requirement for possession (knowledge of possession), with the mental requirement (known as fault) for the crime – that is, can one only be guilty of this crime if one intends to unlawfully possess ammunition or even if one only negligently unlawfully possesses ammunition. The statute that creates this offence is silent on the issue, which requires, in turn, that a court must decide what form of fault, if any is required. This analysis is conspicuously missing from her judgement. The significance is that an analysis could have led her to the conclusion that only negligence was required. If that were so, his defence that he did not know he was not entitled to be in possession of the ammunition would have to stand up to the appropriate test of negligence: would the reasonable firearm owner know that this is prohibited?
In the final analysis, Masipa appears to have erroneously conceived of the defence of putative private defence, and to have misconceived the test of intention when dealing with a problem of error in objecto. Also, she appears to have conflated a requirement for possession for the fault required for the unlawful possession of ammunition. These are all, arguably, errors of law. As errors of law, the state may appeal. The effect is that, if the state does appeal, and one may well expect that it will, Pistorius continues to face the prospect of a murder conviction.

DISCLAIMER
This is translated and elaborated from an article, inspired by Marida Fitzpatrick, and published in the Beeld newspaper today (11 Sept 2014, see OSCAR: VAS OF VRY? http://www.beeld.com/nuus/2014-09-11-oscar-vas-of-vry via @Beeld_Nuus). It appears here subject to the disclaimer under which it was published.  To be clear,  Ulrich Roux and I wrote our respective pieces as an academic excercise to show what a guilty and not guilty verdict could look like; to help people to see both sides. We did not choose which verdict (guilty or not guilty) we would write; the views expressed are not necessarily our own views, and we don’t expect the court to necessarily adopt any of the views expressed.
NOT GUILTY
The criminal onus requires that the state must prove its case beyond a reasonable doubt and that if there is a reasonable doubt as to the accused’s guilt, he must be acquitted. A doubt means nothing more than a possibility. Is there a reasonable possibility that the accused is not guilty? In a world in which, in a relevant sense, everything is possible, the question for us becomes whether any of these possibilities in the accused’s favour, are reasonable.
The evidence that there were moments of discontent in the relationship, that the accused may have threatened to break someone’s legs, and other evidence to the effect that the accused may be of “bad character” might, in some respects be technically admissible because the defence led evidence of the accused’s good character – as provided by s 197 of the Criminal Procedure Act or at common law. However, in line with the general reason why this sort of evidence is ordinarily inadmissible, especially that the accused is not on trial for being of “bad character”, we regard it as of such little weight that we have excluded it from our considerations.
The testimony of the “ear-witnesses” is clearly in a different league. While it is correct that is “circumstantial evidence” in that it requires the court to draw inferences, most evidence, even so called direct evidence still requires that the court must draw inferences. Furthermore, we know that circumstantial evidence is not necessarily weaker than direct evidence. It is trite that in our law the drawing of inferences from circumstantial evidence is governed by the “cardinal rules of logic” from S v Blom 1939 AD to the effect that: the inference sought to be draw must be consistent with the proved facts, and it must be the only reasonable inference. The evidence of Dr Lin was to the effect that it is entirely possible that a person would mistake a male scream for that of a female. He did concede that it is possible that person could accurately distinguish, but this concession does not assist in finding that it was a woman who screamed – as the only reasonable inference. This is just another way of saying that there appears to be a reasonable doubt as to whether the screaming that was heard, was that of the deceased.
We disagree with the prosecution that these two defences (involuntariness and putative private defence) are incompatible. It is not the case that involuntariness is a claim to not have been thinking, while putative private defence is a defence that the accused was thinking, albeit mistakenly. This is to misconceive involuntariness – it is not a claim that one was not thinking, only that, if one was thinking, whatever one was thinking did not control one’s conduct.In that case, the two defences proposed by the defence in the alternative are compatible and amount to the claim that the accused was under a mistaken belief that there was an intruder in his toilet and 1) in his heightened state of anxiety he got a fright and involuntary discharged his firearm; 2) he voluntarily discharged his firearm in putative private defence (the mistaken belief that he was entitled to kill whoever was in the toilet).
The defence raised by the accused that he discharged his firearm as a result of a “fright” is, in our view, the defence if involuntariness.A state of involuntariness prevails if the accused’s conduct was not under the control of his conscious mind (Burchell, Principles of Criminal Law 2013; S v Johnson 1969 (1) SA 201 AD; S v Chretien 1981 (1) 1097 AD). This court has stated on numerous occasions that a court is permitted to draw the natural inference that, ordinarily, conduct is voluntary and that if an accused wishes to claim involuntariness, he must provide some basis for this claim. (S v Henry (1) 1999 13 SCA). We are of the view that this basis was indeed provided in the evidence of Professors Derman and  Vorster. In this, taken together with the evidence to the effect that the accused is an overly anxious person and likely to startle easily, we find a sufficient basis to place a reasonable doubt on the voluntariness of the accused’s conduct at the time of pulling the trigger.
In the absence of reliable evidence (particularly to the effect that the deceased was screaming that night) to support the version of the state as the only reasonable inference, we cannot accept the version proposed by the state. However, the question arises, on the accused’s own version whether we accept that there is a reasonable possibility that upon hearing a sound emanating from his bathroom, the accused immediately assumed an intruder or intruders had gained entrance to his home, that, throughout his response, until he fired the fatal shots, he continued to misinterpret further sounds and the situation generally as one of an attack, and that he did not foresee the possibility that he could be wrong and that it could be the deceased in the bathroom and toilet. Again, the question we must ask ourselves is not whether this could possibly be true – that is not enough for the accused. On the other hand, the question is also not whether we think this is true, nor whether this is what most likely or probably happened. The question is whether this could reasonably possibly have happened. Given that we have accepted that the accused is an overly anxious person, and that, ironically, because the State has convinced us that the accused is reckless with firearms, we are able to conceive of the reasonable possibility that he could have laboured under this mistake and fired his gun at the door in the mistaken belief that he was entitled to do so. This mistake excludes the intention to unlawfully kill and he cannot be convicted of murder.
***
See the article in the Beeld for Ulrich Roux’s guilty “verdict”. See also my article in the Telegraph to the effect that Oscar Pistorius is, in my view, in grave jeopardy: Legal View: Oscar Pistorius ‘in grave jeopardy’ of being convicted of Reeva Steenkamp’s murder | via @Telegraph http://fw.to/GnI3Kq

What is most important for parents, is that there is no basis recognised in law, upon which a parent may possess or distribute an image or video of his/her child that amounts to “child pornography”, simply by virtue of being a parent. If the images or videos you have of your own child amount to “child pornography”, your possession, as a parent, is unlawful – as will any distribution of these images and videos.
That said, after a careful analysis of both the Films and Publications Act, and the Sexual Offences Act, the following may be discerned: No matter whether you are a child’s parent, it is an offence to intentionally (or possibly negligently) unlawfully create, possess, or distribute an image or video of a child which is sexually explicit – where the primary objective (judged objectively and in context) is to illicit sexual arousal – showing a child:
(a) engaged in an act that constitutes a sexual offence;
(b) engaged in an act of sexual penetration;
(c) engaged in an act of sexual violation;
(d) engaged in an act of masturbation; or
(e) displaying the genital organs of such person in a state of arousal or stimulation;
(f) unduly displaying the genital organs or anus of such person;
(g) displaying any form of stimulation of a sexual nature of such person’s breasts;
(h) engaged in sexually suggestive or lewd acts;
(i) engaged in or as the subject of sadistic or masochistic acts of a sexual nature;
(j) engaged in any conduct or activity characteristically associated with sexual intercourse;
(k) showing or describing such person— (i) participating in, or assisting or facilitating another person to participate; or (ii) being in the presence of another person who commits or in any other manner being involved in, any act contemplated in paragraphs (a) to (j); or
(l) showing or describing the body, or parts of the body, of such person in a manner or in circumstances which, within the context, violate or offend the sexual integrity or dignity of that person or any category of persons under 18.

For the details see and a discussion of the actual offences, see Possession and Distribution of Child Pornography  Please read the full document before sending any questions – your questions may well be answered in the full discussion.

Does James Grant think he is an alien? 1/
Pistorius needs only to raise a reasonable doubt that he intended to UNLAWFULLY kill whoever was behind the door. 2/
Intention is judged subjectively – what was he actually thinking; A doubt = a possibility. Thus a reasonable doubt = a reasonable possibility. 3/
There must always be doubt about anything in the universe. It’s possible that Grant is an alien… 4/
But is it reasonably possible? We may dismiss this possibility as unreasonable, but can we dismiss the possibility that Grant THINKS he is an alien as unreasonable? Probably (I hope)5/
Similarly, for Pistorius, he has conceded that there is no reasonable possibility that he was, in fact, entitled to kill in private defence 6/
But, can we dismiss the possibility that Pistorius THOUGHT he was entitled to kill in private defence as unreasonable? 7/7

The finding of the panel which observed Oscar Pistorius, reported by Prosecutor Gerrie Nel, is both surprising, and unsurprising – it is both right and wrong. This is because nobody can say whether Oscar Pistorius suffered, at the relevant time (of the alleged offence), from a legally significant “mental illness or defect”. The concept is undefined in our law. The effect is that no one can know whether a “mental illness or defect” was present. The first problem is that a “mental illness or defect” is a legal concept, distinguished in law, from “mental disorders” that are the concern of psychology and psychiatry. The law insists that a “mental disorder” does not necessarily amount to a “mental illness or defect”. Courts must ultimately decide – and yet there exists no criteria upon which to base this decision.
I attach a working draft of a paper that sets out this argument at length – constructive comments welcome. It argues that the requirement of “mental illness or defect” in our law, as a threshold requirement for a defence of “pathological incapacity” (the insanity defence) is almost entirely meaningless, or that such meaning as it has is unfounded, ill considered, or a distraction, and that it is, is in any event, apparently redundant. Nobody can say whether a “mental illness or defect” was present or not. I argue that we must face this problem, and that the best solution is to abolish the requirement from our law.
ABSTRACT:
The defence of pathological criminal incapacity requires, as a threshold criterion, that an accused suffered from a ‘mental illness or defect’ at the relevant time. Analysis of what this threshold criterion means reveals that it is almost entirely meaningless, or that such meaning as it has is unfounded, ill considered, or a distraction, and is in any event, apparently redundant. It seems instead that the criterion is giving expression to surreptitious fears regarding the dangerousness of persons who may succeed with this defence. I recommend that we drop the criterion as intellectually dishonest and that we no longer distinguish pathological from non-pathological incapacity and that we ask what appears to be the real question: about dangerousness. We can ask this question in the correct context, that of the civil law which is already designed to address this question. This enquiry could follow automatically upon a successful incapacity defence. Finally I argue that there are several associated benefits to doing this, including that this would allow for all persons who claim incapacity to be treated equally, that the dubious ‘reverse burden’ placed on accused persons who attribute their incapacity to a mental illness or defect, which is not placed on those who claim incapacity but do not attribute it to a mental illness or defect, is withdrawn. Also it will introduce further equality in that the dangerousness of all accused who succeed with an incapacity defence will be considered. Currently dangerousness is surreptitiously presumed in respect of those who attribute their incapacity to a mental illness or defect, but it is not a question which is currently considered in respect of accused who do not attribute their incapacity to a mental illness or defect – and who currently receive, if successful, an unqualified acquittal.
DOWNLOAD HERE: THE MEANING OF THE MENTAL ILLNESS OR DEFECT REQUIREMENT FOR AN INSANITY DEFENCE.WORKING

In the conduct of Pistorius’s defence, through the testimony of Dr Vorster, the criminal capacity of Pistorius has been placed in issue. Criminal capacity, together with the requirement that your conduct must be voluntary, are the bases upon which our law enquires whether you are a responsible person – whether it makes any sense to hold you criminally liable in law and to punish you. We take it that it would not be sensible to punish, for instance, rocks and trees. It wouldn’t make much sense, if the limb of a tree fell on you, to charge the tree with assault. In our law capacity requires that a person must possess two abilities: 1) to appreciate the wrongfulness of his or her conduct (referred to as “insight”); 2) to act in accordance with that appreciation (referred to as “self-control”).
In our law, one may lack capacity because of mental illness (this was previously called the “insanity” defence – now called pathological incapacity) and youth (very young children below 10 years are regarded as lacking capacity). More recently (although controversially) we have recognised that severe intoxication (S v Chretien 1981 AD), and severe emotional stress (S v Wiid 1990 AD; Eadie 2002 SCA) can deprive a person of capacity and responsibility. Cases of non-responsibility due to severe emotional stress have come to be called non-pathological criminal incapacity (“non-path”). In the case of Eadie the Supreme Court of Appeal confirmed that non-path is a valid and complete defence in South African Law – in theory. The judgment went further though and raised the bar for claims of this defence. The effect of this judgement (Eadie) has been to virtually shut down the defence in practice.
An astute observer may ask whether there is any relationship between a claim to lack capacity and the second apparent defence raised by Pistorius – in his own testimony – that he acted involuntarily (see “Pistorius’s Second Defence: Involuntariness” on this site). The answer is that there is. In the leading case of S v Eadie (referred to above – which effectively shut down the defence of non-pathological criminal incapacity in practice) the SCA indicated that the requirement of capacity to act in accordance with an appreciation of wrongfulness (the second leg of capacity) and voluntariness were equivalent. This is the reason why non-pathological incapacity became such a difficult defence – because involuntariness is a difficult defence to succeed with. The court in Eadie indicated that a defence of incapacity to conduct oneself in accordance with an appreciation of wrongfulness must be established on the same basis as a defence if involuntariness. A defence of involuntariness is exceedingly difficult to prove. The essence of involuntariness is that the accused’s mind did not control his/her conduct. Well known examples are instances of epilepsy and sleepwalking. Also, the prosecution is aided by a form of presumption (“a natural inference”) that the court will rely on: that conduct of an accused is ordinary voluntary and that if the accused wishes to disturb this natural inference, the accused will have to lay a sound basis for this. There seems to be no sound basis for a claim to incapacity for self control or involuntariness – unless the testimony of Dr Vorster is treated as such, or perhaps, the enquiry that her evidence triggered may provide. Her evidence, apparently (if media reports are correct) included statements that Pistorius would respond “differently” (presumably to “normal” people) and also that his mental condition may have affected his ability to control his conduct (act in accordance with an appreciation of wrongfulness).
If a person’s capacity is placed in issue, a court may refer the accused for an enquiry into his/her mental condition (s 78(2)). At this point, the provision is permissive – the Court may refer the accused. If, however, a mental illness is implicated as the reason why the accused’s capacity for self-control may have been absent, and the prospect of a pathological incapacity (“insanity”) defence is raised, the Court must refer the accused – the court has no discretion. Vorster diagnosed the accused with a psychiatric disorder (generalised anxiety disorder) and insisted that this did not constitute a mental illness for the purpose of a defence of pathological incapacity. The issue then turned on whether the condition that Vorster diagnosed did constitute a mental illness. A mental condition or disorder must constitute a mental illness (or defect) to form the basis of a pathological incapacity defence. The obvious question then is what is a mental illness or defect?
The defence of pathological incapacity (“insanity”) appears in s 78 (1) of the Criminal Procedure Act:
“A person who commits an act or makes an omission which constitutes an offence and who at the time of such commission or omission suffers from a mental illness or mental defect which makes him or her incapable—
(a) of appreciating the wrongfulness of his or her act or omission; or
(b) of acting in accordance with an appreciation of the wrongfulness of his or her act or omission, shall not be criminally responsible for such act or omission.”
Notably there is no definition in the Act or the law at all for a mental illness or defect. The closest the law has ever come to a definition, and this seems to be treated as the unofficial definition, was stated in S v Stellmacher (1983 SWA): mental illness or defect must be: 1) a pathology and 2) of endogenous (internal) origin. Regrettably, this is unhelpful. A pathology is simply a synonym for illness. There is also some suggestion that the disorder should be somehow “morbid” (S v Mabena 2007 SCA), but regrettably, this only means, once again, that the condition must be a disease condition, which is another synonym for illness.
On the (2nd) requirement that the disorder must be of “internal” origin, this is a virtually impossible criteria to apply and one that attracts deep controversy in the social sciences as to whether a valid distinction can be drawn on the basis of the source of a disorder. It is so contested that the Diagnostic and Statistical Manual of Mental Disorders (DSM, which lists all currently recognised mental disorders) only rarely comments on the source. The one clear exception is in respect of post traumatic stress disorder in respect of which the DSM stipulates that it is caused by an extraordinarily stressful event. The problem is that it seems well recognised that most disorders arise out of a combination of “internal” and “external” factors. While an internal factor, such as a person’s genes, may predispose the person to developing a particular disorder, the “trigger” for the disorder may well come from the person’s environment (external to the person).
In the circumstances, there is truly no reliable definition. At this point one may think that it is just as well that a matter is referred to an expert panel of mental health practitioners – surely they can tell the court. However, one must wonder how a mental health practitioner can possible tell the court whether a disorder is a mental illness or not because these concepts are “legal concepts” which remain undefined in law.
One may wonder how our law proceeds in the circumstances – you would do well to wonder. It is a source of deep mystery.
In the Pistorius case the court was confronted with testimony of a well respected mental health expert to the effect that Pistorius suffered from a mental disorder that would (indirectly) make him dangerous and took the view that this may reasonably possibly (S v Malatji 2013 GNP) constitute a mental illness. Once that was recognised and coupled with Voster’s testimony that Pistorius’s capacity for self-control at the time of the conduct in question may have been affected, the court had no choice. It had to refer him (s78(2)).
What remains of some interest is whether Pistorius will be committed for 30 days, as is customary, or be observed as an outpatient. It would unquestionably be exceptional for a referral to be observed as an outpatient, but that is perhaps not enough for anyone to question why Judge Masipa would even contemplate this. We should, of course, wait for her actual order and her reasons for the order she makes. We owe her at least that, and more.
However, while we will have to wait and see, it is worthwhile observing that an enquiry ordered in terms of s 79(2)(a) does not require commitment for 30 days – it permits it – the word is “may”. The wording of the sections is as follows:
“(2) (a) The court may for the purposes of the relevant enquiry commit the accused to a psychiatric hospital or to any other place designated by the court, for such periods, not exceeding thirty days at a time, …” (Authors emphasis)
Beyond that, perhaps there is already something in what Judge Masipa has said that we should celebrate. We should celebrate a judge who shows preparedness to do something unconventional – so long as it serves its purpose. Just because the convention is to commit accused people for 30 days doesn’t make it right, and doesn’t require that we continue this practice if there is a better alternative.
In my view an order that Pistorius is to be observed as an outpatient will not achieve the required purpose. A mental health enquiry is ordinarily done on an in-patient basis to permit for constant observation: 24/7. This allows psychiatrists, psychiatric nurses, social workers and psychologists to observe the patient in all contexts, in interaction with other patients, at night, to observe how much and how well an accused sleeps and eats, and allows the psychiatrists to take complete control of an accused’s medication. I doubt this extent of control and observation can be dispensed with. Nevertheless, it is always refreshing and encouraging to hear a judge question the status quo.

It is worth remembering – because this issue continues to be misunderstood: one may intentionally kill another human being – so long as you are justified (such as in self/private defence) and you know/believe you are justified.
If you are not justified (such as you are not under attack), you are only liable to a murder conviction if you know/believe you were not justified – if you know that you were not under attack. If you know you were not justified, you have intention in South African law. Intention is an entirely subjective enquiry. It turns on what the accused was actually thinking.
If you are not justified, and you did not know that you were not justified (that is, you were mistaken) you cannot be convicted of murder. In this scenario (of mistake) you can still be convicted of culpable homicide, if the mistake you made was not one that the reasonable person, in the circumstances, would make. The enquiry into negligence is objective and essentially a comparison between the conduct of the accused, and what the reasonable person would have done in the circumstances that the accused was in. 
In this enquiry, everything depends on what one regards as the “circumstances of the accused” and one’s construction of the reasonable person. The more characteristics of the accused that are attributed to the reasonable person, the more like the accused the reasonable person becomes, and the less likely a court will be to find that the accused was negligent. The significance of what constitutes the “circumstances of the accused” is whether this includes anything “internal” to an accused or anything beyond the immediate circumstances of an accused. The answer to this is that our law has, until now, only been prepared to take into account the immediate external
circumstances of the accused, and has not been prepared to attribute to the reasonable person any disorders, disabilities, or deficiencies on the part of an accused person (S v Ngubane 1985 AD). Quite the opposite, our law has instead attributed to the reasonable person the skill and knowledge that is required to perform the task or activity that the accused was engaged in. Thus, the conduct of an accused who performs a surgical operation from which the victim dies, will be compared to the conduct of a reasonable surgeon. The conduct of an accused who uses a firearm will be compared to that of a reasonable firearm owner.

All crimes/offences have an “unlawfulness” requirement built in. You are only liable to criminal punishment if your conduct is “unlawful”. Unlawfulness is judged by the “legal convictions of the community” but ultimately, by the values in the Constitution. Thus the unlawfulness requirement in every offence is really a requirement that one’s conduct must be unconstitutional. It is therefore not possible to be convicted of any offence, including any under the Protection of State Information Bill (once enacted), if one’s conduct is Constitutional. That is, if you would be permitted by the values in the Constitution (such as the rights to freedom of the press and to information and expression) to possess or disclose classified information, doing so would be lawful, and one cannot be convicted of any offence for doing so.
Although this defence which I will call the “Consitutional-lawfulness defence” must be recognised by our Courts, I appreciate that it will come as little consolation to anyone contemplating possessing or disclosing classified information – until the courts have recognised the defence and set out its parameters and the relevant factors for consideration. This raises a problem, as things stand, of uncertainty.
Certainty of law (which arises out of the rule of law – also entrenched in the Constitution) requires, at the very least, that people who are subject to the law must be able to determine with reasonable accuracy, what they are permitted and not permitted to do.
Although the overriding Constitutional-lawfulness defence must be recognised, I do think it would be preferable, even demanded by the rule of law, for the parameters and relevant factors of this defence to be spelt out in the Bill, in as much detail as possible, so that anyone contemplating ostensibly contravening the Protection of State Information Bill (once enacted), will have as much certainty as possible.
Although I am open to persuasion, it is not clear to me that the latest amendments to the Bill (in Bill B6D) achieve what is required. In the circumstances, and assuming that the Bill in its current form is made law and enforced, the Consitutional-lawfulness defence may need to be relied on.
* Thanks to David O Sullivan for taking an interest in this argument and for challenging me to summarise it as (I hope) I have done here.
** This argument was originally published in very brief form on Politicsweb in Dec 2011 (available at http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=271256&sn=Detail).
*** The full piece (including the argument that despite the existence of a defence in the “unlawfulness” requirement, the demands of legal certainty require that the defence is set out) was published in the South African Journal of Human Rights, Vol 28, Issue 2, 2012. Ironically, although I wrote it, I am not permitted to post it on the net. It is possible to access it, by subscribing to the journal, or otherwise purchasing a copy through Sabinet (for a whopping R200 – none of which I will ever see). If it were my choice, I would make it available freely.

Murder is the intentional unlawful killing of another human being. Culpable homicide is the negligent unlawful killing of another human being.
You are entitled (justified) in law to intentionally lawfully (such as, in self-defence) kill another human being. There is no criminal liability for doing so. Whether you are under attack and entitled to act in self defence is judged objectively, on the facts. Pistorius is not making this claim. He accepts he acted unlawfully – he was not entitled to shoot at anyone that night.
In addition, you will be excused on a murder charge for unintentionally unlawfully killing another human being. This is a mental state defence – it denies the required guilty mental state.
For murder, you must intend to unlawfully kill. If you are mistaken, and genuinely believe you are acting lawfully (such as in private-defence (the technical name for the defence under which self-defence is located)), whereas you are not acting lawfully, you cannot be convicted of murder because you don’t intend to act unlawfully. To escape a conviction of culpable homicide this mistake must be reasonable – one which the reasonable person may make. But on a murder charge, it is enough, for an acquittal, if the accused was subjectively mistaken.
This defence (that you mistakenly thought you were entitled to act in private-defence) is known as “putative private-defence”. Until his testimony, this was Pistorius’s defence. I say “until his testimony”, because during his testimony, he seems to be claiming that he fired at the toilet door by accident. This is vastly different – a claim of “accident” amounts in law to a claim of involuntariness. The defence of involuntariness is well recognised – examples include movement during an epileptic seizure and sleepwalking. The essence of the defence is that your mind did not direct or control your conduct. His testimony seems to be raising this defence. In Tasha’s, the gun in his hand simply went off by itself. His claim is he did not pull the trigger. This is not, at least, at odds with what he has said before on this firearms charge because his testimony is, to my knowledge, the first indication of his defence on this charge.
However, on the murder charge, his defence, until his testimony, has been that he mistakenly thought he was entitled to act in self defence. This, as I’ve said, is a valid defence. Yet in his testimony, he seems to be changing his defence. He seems to be claiming that the discharge of his firearm was an accident or at the very least, that his conduct was not under the control of his mind. This is again a claim that the gun had gone off in his hands, but he had nothing to do with it. This seems to keep happening to Oscar.
A claim to involuntariness is a difficult one because our courts assume that ordinary conduct is voluntary. If you have done something, you need to lay a basis for a claim to have done so involuntarily – because the courts presume voluntariness (S v Henry 1999 SCA). There appears to be no basis for this claim – at least nothing in the evidence that I have seen so far. To be fair, the interpretation of “accident” as a claim to involuntariness is a technical one. It is understandable that an accused who is unfamiliar with the law and the legal implications of what he is saying may make this mistake. This is not, in my view, the problem. The problem is that he seems unclear as to what his defence is. Until his testimony his defence has been one of putative private defence. It is consistent with such a defence to say: I intended to kill – although I thought I was doing so lawfully; I intended to kill the person behind the door who I thought was an intruder and that I had to use lethal force. On a charge of murder, there is nothing inconsistent with innocence to intentionally kill someone – so long as you think you are doing so lawfully (such as in private defence). But if this is your defence, it makes no sense to deny having intended to kill anyone. An accused who does so would appear to be unclear about his/her defence.
For me this gives rise to a crucial question: Why would an accused be so unclear about his defence that it seems to change as he testifies on the stand?