THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
Case no:  196/2001

In the matter between:
GRAEME MICHAEL EADIE                                                          APPELLANT
and
THE STATE                                                                                    RESPONDENT
___________________________________________________________________
Coram:
Olivier, Streicher and Navsa JJA
Date of hearing:
19 February 2002
Date of delivery: 27 March 2002
Summary:
Defence of non-pathological criminal incapacity due to a combination of emotional stress
provocation and intoxication – not distinct from sane automatism – test for non-pathological
criminal incapacity – factors to be considered in evaluating veracity of defence.
___________________________________________________________________
JUDGMENT
___________________________________________________________________

NAVSA JA:

[1] During the very early hours of the morning of Saturday 12 June 1999 on Ou
Kaapseweg near Fish Hoek, the appellant assaulted Kevin Andrew Duncan (“the
deceased”) and beat him to death in circumstances described in popular language as
road rage.  The appellant stood trial in the Cape Provincial Division of the High Court,
before Griesel J, on a charge of murder and on a charge of obstructing the ends of
justice.  In respect of the second charge it was alleged that after the commission of the
murder the appellant disposed of a hockey stick which he used in the attack on the
deceased so that it could not be found by the police, and further, that he attempted to
mislead the police by falsely showing them a pair of jeans other than the blood
splattered pair he was wearing at the relevant time.  The appellant admitted that he
assaulted and killed the deceased.  His defence was one of temporary non-pathological
criminal incapacity resulting from a combination of severe emotional stress,
provocation and a measure of intoxication, thus placing in dispute that at the material
time he could distinguish between right and wrong and that he could act in accordance
with that distinction.  The appellant’s defence was rejected and he was convicted on
both charges.  On the murder charge the appellant was sentenced to fifteen-years'
imprisonment, five years of which were conditionally suspended.  On the charge of
obstructing the ends of justice the appellant was sentenced to imprisonment for

9 months.  It was ordered that this sentence run concurrently with the sentence imposed
in respect of his conviction on the murder charge.   The judgment of the Court below is
reported as S v Eadie (1) 2001(1) SACR 172(C).  The appellant appeals, with the
leave of the Court below, against his conviction on the charge of murder.  The primary
issue in this appeal is whether the appellant lacked criminal capacity at the time that he
killed the deceased.  Before us it was conceded on behalf of the appellant that at the
relevant time he was able to distinguish between right and wrong.  It was contested that
he was able to act in accordance with that appreciation.  It was submitted, before us, in
the alternative, (in the event of a finding that the appellant did not lack criminal
capacity), that the State failed to prove beyond reasonable doubt that the appellant had
dolus in either the form of dolus directus or dolus eventualis and that it should be
found that a proper verdict in the totality of the circumstances of the case is one of
culpable homicide.
[2] It is well established that when an accused person raises a defence of temporary
non-pathological criminal incapacity, the State bears the onus to prove that he or she
had criminal capacity at the relevant time.  It has repeatedly been stated by this Court
that:
(i)
in discharging the onus the State is assisted by the natural inference that in the
absence of exceptional circumstances a sane person who engages in conduct

which would ordinarily give rise to criminal liability, does so consciously and
voluntarily;
(ii)
an accused person who raises such a defence is required to lay a foundation for
it, sufficient at least to create a reasonable doubt on the point;
(iii)
evidence in support of such a defence must be carefully scrutinised;
(iv)
it is for the Court to decide the question of the accused’s criminal capacity,
having regard to the expert evidence and all the facts of the case, including the
nature of the accused’s actions during the relevant period.
S v Calitz 1990 (1) SACR 119 (A) at 126 h- 127 c; S v Wiid 1990 (1) SACR 561 (A)
at 564 b – g; S v Potgieter 1994 (1) SACR 61 (A) at 72 j – 73 h; S v Cunningham
1996 (1) SACR 631 (A) at 635 i - 636 c; S v Francis 1999 (1) SACR 650 (SCA) at
652 c – h.
[3] I will in due course deal with the test for criminal capacity as laid down in this
Court and with contributions by academic writers.  In the course of this judgment I will
consider whether the boundaries of the defence in question have been inappropriately
extended, particularly in decisions of Provincial or Local Divisions of the High Court,
so as to negatively affect public confidence in the administration of justice.
[4] At this stage it is necessary to consider the facts of the present case and the basis
on which the Court below reached its conclusions.  It is not disputed that at the time of

the attack on the deceased the appellant was subjected to a number of stressors.  He
was experiencing financial difficulties, problems at work, tensions in his marriage and
was in a depressed state.  The events that led to the death of the deceased and the
surrounding circumstances are largely common cause.  There is a dispute about the
manner in which the assault was perpetrated, which is dealt with in the summary that
follows.
[5] The appellant, presently 37 years old, is a keen sportsman and a competitive
hockey player.  On Friday 11 June 1999, accompanied by his wife, he attended a
function of the Fish Hoek Hockey club held at the Holiday Inn in Woodstock, Cape
Town.  During the course of the night he consumed at least seven bottles of beer.
After the function the appellant and his wife joined another couple for a late meal at a
restaurant in Rondebosch, where he consumed at least two more bottles of beer and
two Irish Coffees.  In the early hours of Saturday morning the appellant and his wife
drove home in their Volkswagen Jetta motor vehicle ("the Jetta”), stopping at his
mother’s house to pick up their two young children.  They drove along OuKaapseweg
in a southerly direction towards Fish Hoek.  As they travelled home with the children
asleep on the backseat they became aware of the headlights of a motor vehicle coming
up behind them.  The deceased was the driver and sole occupant of this vehicle, a
Toyota Corolla ("the Toyota").  He drove right up to the Jetta, overtook them, and in

the process flashed his headlights, which were on bright.  The deceased then slowed
down considerably.  The appellant remained behind him for a short distance.  When the
deceased reduced his speed to approximately 40 kmph the appellant overtook him.
The deceased increased his speed and once again drove up close to the Jettas rear
bumper, keeping his headlights on bright.  The appellant accelerated but could not put
distance between them.  The Toyota overtook the Jetta once more and the process
described earlier was repeated - the deceased slowed down and the appellant overtook
him but could not get away.  The appellant became angry and concerned about his
family’s safety.  He stopped the Jetta at a set of traffic lights relatively close to his
home.  The Toyota stopped behind him.  The appellant got out of the Jetta, took a
hockey stick from behind the driver's seat, and walked towards the Toyota.  At this
point the appellant’s wife drove off in the Jetta.  The deceased remained seated behind
the steering wheel of the stationary Toyota.  The appellant initially intended to smash
the Toyotas headlights.  He changed his mind and decided to smash the windscreen.
When the appellant got close to the Toyota the deceased opened the driver’s door,
prompting him to divert his attention from the windscreen and to lunge at the deceased
with the hockey stick, which broke into two parts as it struck the vehicle.  The
appellant became extremely angry.  He succeeded in opening the driver’s door of the
Toyota after it was kicked at him and closed again by the deceased.  The appellant

punched the deceased against the head whilst he was still in the Toyota and continued
the assault by punching him repeatedly.  He pulled the deceased out of the vehicle and
into the road.  The deceased fell.  The appellant repeatedly and savagely stamped on
the deceased's head with the heel of his shoe.  The appellant broke the deceased’s nose
by stamping on it with his heel.
[6] The appellant testified that whilst he was assaulting the deceased he could feel
himself shouting but did not hear any sound.  He could see some things clearly whilst
others were blurred.  He felt as if he was in a fish bowl.  When he pulled the deceased
out of the Toyota he felt no weight.  In perpetrating the assault he felt that he was
going, going, going’.  He experienced these sensations from the time that the hockey
stick broke.  The appellant could nevertheless recall and relate what happened in the
detail set out above.
[7] Mr Graham Hill (“Hill”), a motorist who drove past the scene witnessed at least
part of the attack on the deceased and testified in support of the State’s case.  He
supplied a slightly different version of the assault, testifying that the appellant used the
hockey stick as a weapon, jabbing it at the deceased whilst he was still seated in the
Toyota.
[8] The appellant testified that after he assaulted the deceased he did not realise
where he was.  His wife returned to the scene a short while after her initial departure

and repeatedly called his name without receiving a response.  The appellant eventually
heard his wife call his name and walked to the Jetta.  His wife drove him home in
silence.  After the appellant arrived at home he decided almost immediately to return to
the scene.  There was no one else at the scene.  He established that the deceased was
dead and unsuccessfully attempted to dial an emergency number on his cell-phone.
Soon thereafter a tow-truck driven by Mr Jan Eksteen (“Eksteen”) arrived at the scene.
Eksteen saw that the jeans worn by the appellant was blood splattered.  The appellant
told Eksteen that he was at the scene attempting to assist the deceased, deliberately
creating the impression that he was an innocent bystander.  The police arrived a short
while later and the appellant repeated his explanation for being at the scene.  He
supplied the police with his personal particulars and departed, but not before
surreptitiously removing the hockey stick from the scene.  He disposed of the stick by
throwing it into bushes some distance away.  Later, he was requested by the police to
return to the scene to point out the position of the hockey stick.  He was also requested
to bring along with him the blood splattered jeans he had on earlier.  He returned and
could of course not point out where he had left the hockey stick.  He presented the
police with jeans different from the pair he wore at the time of the assault on the
deceased.  Eksteen pointed this out to the police, resulting in the appellant eventually
disclosing the truth.  He was arrested and thereafter gave his full co-operation to the

police.  He took the police to the place where he had disposed of the broken hockey
stick.  Only one part of the stick was recovered.
[9] Blood-alcohol tests conducted on the appellant, the results of which are
uncontested, revealed that his blood-alcohol level at the time of the assault was in the
region of 0,15 grams/100 ml.  A post-mortem examination of the deceased revealed
that his blood-alcohol level at the time of death was 0,17 grams /100ml.  Both blood-
alcohol levels are significantly beyond the legal limit.  The post-mortem examination
established that the deceased sustained significant fractures of the facial bones and
skull.  The deceased died as a result of these injuries, which, according to Dr Van der
Heyde who conducted the post-mortem examination, were caused by the application of
a considerable degree of blunt force.
[10] The appellant sought to persuade the Court below that an incident that occurred
in Johannesburg during 1990 played a part in precipitating the assault which led to the
deceased’s death.  I set out a summary of his version of that incident.  The appellant
and a friend who were in Johannesburg on business, found, upon their return to their
vehicle in a parking lot, that they were parked in by another motorist.  When that
motorist eventually arrived he drove off without an apology.  The appellant and his
friend drove after the offending motorist to seek an explanation for his behaviour.  The
other motorist was unrepentant.  There was an exchange of verbal abuse and offensive

gestures.  In a sudden twist the other motorist ended up pursuing the appellant and his
friend, flashing his lights at them.  The appellant’s vehicle struck the pavement and he
was forced to stop.  The other motorist confronted and assaulted the appellant.  Within
a short while other vehicles and people surrounded the appellant and his friend.  One of
the persons who arrived on the scene was dressed in a police uniform.  The others
appeared to be policemen in civilian dress.  The appellant was assaulted by the
policemen and rendered unconscious.  He sustained a fractured cheekbone, a broken
nose, a dislocated jaw and a number of bruises and abrasions.
[11] To complete the historical background it is necessary to record that during 1986,
after a term of border duty as a national serviceman in the army, the appellant suffered
a mental breakdown - he held a firearm to his chin and held people at bay.  In
consequence he was admitted to 1 Military Hospital and was assessed as suffering
from an adjustment disorder with mood and behavioural changes.  Psychometric
testing revealed compulsive traits, poor impulse control and a potential for destructive
behaviour.  He received no treatment to address this condition and the results of the
tests were not conveyed to him.
[12] I turn to deal with the evidence in the Court below, of a psychologist and two
psychiatrists who all conducted interviews with the appellant and who were supplied
with the background and historical details set out earlier in this judgment.  Mr Stephen

Lay (“Lay”), a psychologist employed at Valkenberg Hospital’s forensic unit, testified
in support of the State’s case.  He assessed the appellant as someone who bottled up his
emotions and who had personality problems, which gave rise to difficulties in his
employment, family and other relationships.  Lay thought it highly unlikely that the
incident in Hillbrow in 1990 played any part as a trigger or otherwise in the appellants
assault on the deceased.  There were no indications that it resulted in a post- traumatic
stress syndrome in the appellant.  On the contrary, the appellant was emphatic that in
assaulting the deceased he was motivated by anger and that the anger was caused by
the fact that the deceased had attempted to run him off the road.  Lay accepted that the
intake of alcohol during the time preceding the assault on the deceased played some
role in the appellant’s conduct.
[13] Lay considered it important that the appellant approached the Toyota with the
intention of perpetrating a violent act.  His actions were rational, purposeful and goal-
directed.  The appellant had the “cognitive wherewithal” to realise that the deceased
had fallen after the first blow and had been rendered unconscious.  His assertions of
being disoriented after the assault on the deceased should be seen against this
background.  Lay thought it relevant that the appellant had a full recall of the events in
question yet stated that he was disoriented after the event and could not hear his wife
calling him.  Lay was unwilling to concede that the appellant had “lost control” at the

time he perpetrated the assault on the deceased.  He stated that this expression which is
not a clinical term is used much too loosely - it is vague and too general.  Even though
Lay stated that the question of whether or not the appellant had criminal capacity at the
relevant time was debatable, it is clear from his evidence as a whole that he held the
view that the appellant exercised poor impulse control.  Lay did not accept that the
appellant lacked criminal capacity when he assaulted and killed the deceased.
[14] Dr Sean Kaliski (“Kaliski”), a psychiatrist and head of the forensic psychiatric
unit at Valkenberg Hospital also testified in support of the State’s case.  In his view the
appellant was able to appreciate the wrongfulness of the acts perpetrated by him and to
act accordingly.  It is clear from his evidence that he is sceptical of the defence in
question.  In ninety percent of cases in which he testified the defence was the same as
the one raised in the present case.  In his experience the defence has never been
successfully established - he conceded that this conclusion was based on an assumption
that courts accepted his view on the validity of the defence. Kaliski saw no difference
in a defence of sane automatism and the defence asserted in the present case and went
on to describe the characteristics of sane automatism.  A person who acts in a state of
sane automatism would typically have been subjected to a great deal of stress
producing a state of internal tension building to a climax which in most cases is
reached after the person concerned has endured ongoing humiliation and abuse.  The

climax is triggered by an event unusual in its intensity or unpredictable in its
occurrence.  When one acts in this state one’s cognitive functions are absent.  This
means that actions are unplanned and one is unable to appreciate surrounding events.
Acts perpetrated in this state may appear to be purposeful but should typically be out of
character.  When the period of automatism has passed the person concerned comes to
his senses, is bewildered and horrified by the results of such actions and lends
assistance to the victim.  There would be no concerted effort to escape from the scene.
Persons acting in this manner usually claim amnesia.
[15] Kaliski commented on the appellant's claim that he lost control over his physical
acts as follows.  If the appellant did not know what he was doing his actions would
have been less goal-directed.  He would have been flailing about indiscriminately and
the deceased would have been struck by chance.  The appellant’s assertion that he "lost
control" must be carefully examined.  The expression itself is used too loosely.  It is
common for people to lose their temper and to commit regrettable acts when they
should have known better.  An example is that of a sportsman who commits a blatant
foul in full view of a referee.  The appellant did not show any signs of a post-traumatic
stress syndrome following on the incident in Johannesburg in 1990.  There were no
recurring thoughts, nightmares or flashbacks related to that incident supportive of this
assertion. Even though the appellant had in the past not engaged in acts involving the

degree of violence seen in the attack on the deceased, he nevertheless had a history of
engaging in regrettable conduct and acting impulsively.  After the attack on the
deceased the appellant did not show signs of true disorientation because he eventually
responded to his wife’s shouts and found his way to the Jetta.  The appellant and his
wife took their children home before he returned to the scene.  This indicates that he
had presence of mind.  The appellant would have been more convincing had he not
made an attempt to deceive the police.  The appellant was subjected to provocation and
other stressors but faced no more than scores of people who do not resort to this kind
of behaviour.  The sensations experienced by him during and immediately after the
assault are not unusual in persons who are extremely angry.
[16] Kaliski accepted that courts have held that in certain circumstances a
combination of factors such as stress, provocation and the disinhibiting effects of
alcohol may cause a person to lack criminal capacity.  His experience, however, led
him to conclude that temper and rage disinhibits people but does not rob them of
control.  Kaliski stated that he may be willing to concede the validity of a defence of
non-pathological criminal incapacity due to stress and provocation in the face of
compelling facts.
[17] Dr Ashraf Jedaar (“Jedaar”) a psychiatrist employed at Valkenberg Hospital’s
forensic unit from 1992 - 1999 and presently in private practice, testified in support of

the appellant’s case.  In his view the appellant’s description of the sensations
experienced by him during the attack on the deceased is indicative of an altered state of
consciousness, referred to in psychiatry as a dissociative state.  It indicated a
heightened emotional state, which affected his cognitive functions and led to an
inability to control his behaviour.  I quote the following part of his evidence:
"So although there was a perception or at least a recognition that there was an injury
inflicted on the deceased, he was unable to control the continued assault on the
deceased due to his disturbed cognition."

[18] Jedaar considered it important that the appellant was concerned about the safety
of his family.  Jedaar was of the view that whilst the deceased was pursuing him the
appellant re-experienced the event that took place in Hillbrow during 1990. He took
issue with Kaliski and stated that a defence of sane automatism differs from the
defence asserted by the appellant, in that a person acting in a state of sane automatism
has an absolute absence of cognitive control due to intense emotional arousal whereas
the appellant had intact but disturbed cognition due to emotional factors.  Jedaar was of
the view that the appellant’s purposeful, goal-directed and well-co-ordinated behaviour
masks the fact that his cognition had been disturbed.
[19] The essence of Jedaar’s conclusions is that given the stressors operating on the
appellant, the effect of the alcohol consumed by him, his personality and the
provocation by the deceased, he reached a point where his emotional state was such

that his actions were involuntary.  Jedaar conceded that in this heightened emotional
state the appellant would have been able to make decisions about what and whom he
wanted to attack.  According to Jedaar the appellant lost his power to make decisions
from the time that the hockey stick broke due to the perceived threat from the
deceased.  This was the trigger that deprived him of the power to make decisions.
Jedaar stated, without substantiation, that from that moment on the appellant was
unable to change his decision.
[20] Jedaar accepted that the success of the appellant's defence depended on the
court's acceptance of his evidence that he was unable to control his actions at the
relevant time.  Jedaar conceded that persons who have not had their cognitive ability
disturbed might well experience the sensations experienced by the appellant.  He
accepted that if a person was enraged he or she could be concentrating so heavily on
perpetrating an assault that external stimuli such as being called by name would be
excluded.  Jedaar conceded that in the absence of the disassociative sensations
experienced by the appellant his actions are consistent with conscious decision making.
He accepted that there was nothing exceptional about the depression and anxiety
experienced by the appellant.  Jedaar expressed the view that the event that occurred in
Johannesburg in1990 had to be viewed as part of the totality of circumstances in order
to assess whether the appellant lacked criminal capacity at the relevant time.

[21] Counsel for the state referred Jedaar to his evidence in another case in which he
testified that it is only in the context of mental illness that a person can be driven by an
irresistible impulse.  He attempted to distinguish his evidence in the present case by
stating that the appellant was acting with his cognitive faculties intact but distorted.
According to Jedaar the assault flowed from the appellant’s heightened emotional state,
not from a conscious decision.  However, Jedaar accepted that the appellant’s detailed
description of the assault perpetrated by him negatives any suggestion of automatism.
[22] Griesel J, at 178 a - b of the judgment in the Court below, referred to the
“confusion” between the defence of temporary non-pathological criminal incapacity
and sane automatism.  He dealt with the view adopted by writers like Snyman in
Criminal Law (3rd ed), at 54, 152 and 153 that sane automatism and temporary non-
pathological criminal capacity are separate and distinct defences.  With reference, inter
alia, to S v Francis, supra, at 651 h, where Schutz JA equated non-pathological
incapacity to sane automatism, the learned judge concluded that the distinction might
be one without a difference.  Griesel J states the following at 178 b:
"At the same time, however, it is clear that in many instances the defences of criminal
incapacity and automatism coincide.  This is so because a person who is deprived of
self-control is both incapable of a voluntary act and at the same time lacks criminal
capacity."

[23] Griesel J reminded himself that courts have scrutinised the asserted defence with

circumspection and went on to assess the psychiatric and other evidence.  He
considered that the appellant’s behaviour at the relevant time was focused and goal-
directed and took into account against the appellant his deceitful behaviour after the
incident.  The learned judge formed the view that the appellant’s blow-by-blow
account of events indicated conscious behaviour.  He took into account that witnesses
who saw the appellant at the scene after the assault, described him as behaving
normally.  The learned judge accepted Hill’s account of the assault and rejected the
appellant’s to the extent that it conflicted with Hill’s evidence.  Griesel J thought Hill’s
version of events was probable and was corroborated by the accused’s efforts to get rid
of the hockey stick.  He formed the view that neither the Court nor the psychiatrists
could rely on the appellant's version relating to his defence of criminal incapacity.  He
rejected the appellan’s claim that the stressors referred to earlier in this judgment
contributed to his incapacity at the relevant time stating (at 183 i):
"Hundreds of thousands of people daily find themselves in similar or worse
situations, yet they do not go out clubbing fellow - motorists to death when their
anger may be provoked."

Griesel J concluded that the incident that occurred in Johannesburg in 1990 played no
part in the attack on the deceased and concluded that the appellant did not lose control -
he simply lost his temper.  Having rejected the appellant’s defence of criminal
incapacity, the learned judge considered whether the appellant had the necessary

intention to commit murder.  Having regard to the savage and sustained nature of the
attack on the deceased and that it was directed at the head of the deceased, he
concluded that the appellant had the necessary intention to kill.
[24] Appellant's counsel submitted that the Court below confused the defence of
automatism and the defence of non-pathological criminal incapacity and that Griesel J
failed to appreciate that since the appellant was able to distinguish between right and
wrong his cognitive faculties were in place and goal-directed behaviour could be
expected.  It was contended that the learned judge misdirected himself when he took
into account, against the appellant, that his behaviour was focused and goal-directed.
It was submitted that he should have concluded that the appellant was unable to control
himself due to the emotional stress and provocation he was subjected to.  Reliance was
placed on the following statement in South African Criminal Law and Procedure
(2nd ed), Vol 1 by Burchell and Hunt at 274:
"…it does not have to be shown that the accused's conduct was involuntary in the
sense that it was automatic or purely reflexive, for then the accused would be exempt
from criminal liability on the ground that his act was not one of which the criminal
law takes cognizance, and the question of criminal capacity ("toerekenings-
vatbaarheid") does not arise.  The determining factor, it seems, is the question of self
control – whether, in all the circumstances of the case … the accused "could not
resist or refrain from this act, or was unable to control himself to the extent of
refraining from committing the act…"
(emphasis added)

Counsel for the appellant also relied on the following decisions of the Provincial and
Local Divisions of the High Court in which, he submitted, the defence of non-
pathological criminal incapacity was upheld, notwithstanding that the accused persons
conducted themselves in a goal-directed manner:  S v Arnold 1985 (3) SA 256 (C);
S v Nursingh 1995 (2) SACR 331 (D); S v Moses 1996 (1) SACR 701 (C);
S v Gesualdo 1997 (2) SACR 68 (W).
Reliance was also placed on the minority judgment in a decision of this court in S v
Campher 1987(1) SA 940 (A) where, at 956 C, the following appears:
"As leek op hierdie gebied meen ek egter dat die feit dat die appellante na die tyd
besef het dat sy die oorledene geskiet het die Hof nie verhinder om tot 'n bevinding te
geraak dat die appellante se emosies so 'n breekpunt bereik het en haar so oorweldig
het dat sy nie op die kritieke oomblik kon weerstand bied nie."

Appellant's counsel submitted that the decision of this Court in S v Wiid 1990 (1)
SACR 561 (A) supported his case.
[25] There is a great deal of confusion about the proper application of the test for
criminal capacity.  What follows, is an examination of the historical development of
the asserted defence, a consideration of relevant judgments of this Court and of the
other decisions referred to in the preceding paragraph.  Thereafter I will refer to
criticisms by academic writers about the manner in which the test has been applied.
[26] In our law, criminal incapacity due to mental illness is classified as pathological

incapacity.  Where it is due to factors such as intoxication, provocation and emotional
stress it is termed non-pathological incapacity.  The term non-pathological incapacity
was coined for the first time by Joubert JA in S v Laubscher 1988 (1) SA 163 (A) at
167 D - I.  As pointed out by Snyman in Criminal Law, supra, at 152, Joubert JA
wanted to separate this defence from that of mental illness created by section 78 of the
Criminal Procedure Act 51 of 1977.  In S v Chretien, 1981 (1) SA 1097 (A) which
preceded the Laubscher case, it was determined by this Court that persons who were
so intoxicated that their acts were merely uncontrolled muscular movements are not
criminally liable, because their acts are not recognised as such for purposes of criminal
liability and that those who committed acts which were more than mere uncontrolled
muscular movements but were so intoxicated so as not to appreciate what they were
doing, or were unable to appreciate the difference between right and wrong would lack
criminal capacity and would accordingly escape criminal liability.  Reacting to the
charge that it would be against the public interest if courts were to encourage the idea
that drunkenness can be an excuse for crime, Rumpff CJ said the following at 1105 F –
1106 H:
"Na my mening is dit verkiesliker om te aanvaar dat, indien dit uit die getuienis blyk
dat 'n beskuldigde werklik so besope was dat hy inderdaad nie besef het wat hy
gedoen het nie, die publieke beleid (die regsoortuiging van die gemeenskap) nie
vereis dat van die suiwer regswetenskaplike benadering afgesien moet word nie en
dat die beskuldigde 'n straf moet ondergaan bloot omdat hy vrywillig 'n toestand

bereik het waarin hy juridies nie kan handel nie of ontoerekeningsvatbaar is ... Die
probleem lê mi nie soseer in die beginsel wat toegepas behoort te word nie maar in
die manier waarop die beginsel toegepas word.  Indien 'n hof geredelik of maklik
aanvaar dat 'n besope persoon wat bv 'n vrou verkrag of probeer verkrag nie
bewus is van wat hy doen nie en dus nie toerekeningsvatbaar is nie, en vry behoort
uit te gaan, sou die regspraak baie gou in diskrediet gebring word.  Verminderde
toerekeningsvatbaarheid en 'n minder straf is natuurlik iets anders."
(emphasis added)

[27] Since Chretien’s case the Legislature has intervened statutorily to deal with
intoxication as a defence by way of the Criminal Law Amendment Act 1 of 1988.  It is
beyond the scope of this judgment to examine the changes brought about by statutory
intervention.  I consider the following quotation from South African Law and
Procedure Vol 1 (3rd ed) by JM Burchell at 188 to be important to bear in mind:
"While Chretien cannot be faulted on grounds of logic or conformity with general
principles, the judgment might well have miscalculated the community's attitude to
intoxication."

[28] It was but a short jump from the acceptance that intoxication could result in an
individual losing the ability to distinguish between right and wrong and to act in
accordance with that distinction, to an acceptance that emotional stress combined with
provocation or intoxication or both could excuse criminal liability on the same basis.
Severe emotional stress, in combination with factors such as provocation and/or
intoxication resulting in non-pathological criminal incapacity, has become a very

popular defence as a perusal of the law reports on the subject and a further reading of
this judgment will confirm.
[29] I now proceed to deal chronologically and in some detail with decisions of this
Court in which the defence of non-pathological criminal incapacity was considered.  It
is necessary, in the quest for greater clarity and precision, to distill the common threads
in these judgments.
[30] In S v van Vuuren 1983 (1) SA12 (A) Diemont AJA referred to Chretien’s
case, and said the following at 17 G - H:
"I am prepared to accept that an accused person should not be held criminally
responsible for an unlawful act where his failure to comprehend what he is doing is
attributable not to drink alone, but to a combination of drink and other facts such as
provocation and severe mental or emotional stress.  In principle there is no reason for
limiting the enquiry to the case of the man too drunk to know what he is doing."

The appellant in that case shot his ex-wife and her friend, injuring the former and
killing the latter.  The shooting took place after growing tensions between the appellant
and the persons shot by him.  Diemont AJA noted that the appellant’s actions, after he
shot two people were rational and responsible: he conveyed his daughter to his parents’
house; he telephoned the police and the ambulance; he reported to a policeman that he
had shot two women and accompanied his father back to the house where the shooting
took place.  Diemont AJA took into account that, even though the appellant stated that

he had no knowledge of the actual shooting, he gave the court a detailed account of his
activities during the evening; before and after the event.  It was held that the trial court
was correct in its conclusion that the appellant did not lack criminal capacity.  Dealing
specifically with the effect of emotional stress coupled with provocation and
intoxication Diemont AJA said the following at D - E:
"These factors, the drink, the provocation and the emotional stress all serve to
mitigate his moral turpitude, but I am not persuaded that they caused such mental
turmoil that the appellant had no understanding or knowledge of what he was doing.
There is evidence, persuasive evidence, which supports the State's contention that the
appellant not only was fully aware of his actions but that there was a measure of
premeditation."

[31] In S v Campher 1987 (1) SA 940 (A) the appellant shot and killed her husband
who had repeatedly subjected her to physical and psychological abuse.  In the time
immediately preceding the shooting he had subjected her to further humiliation and
physical abuse.  On appeal, the question whether she lacked criminal capacity at the
relevant time was addressed.  Viljoen JA accepting that at the critical moment the
appellant was aware of the difference between right and wrong said the following (at
956 B):
"Die vraag is egter of sy die vermoë gehad het om ooreenkomstig daardie besef op te
tree, met ander woorde die nodige weerstandskrag gehad het. In die huidige geval
word die ondersoek gereduseer tot die vraag of sy onder die geweldige emosionele
druk wat sy op daardie oomblik beleef het die vermoë gehad het om weerstand te

bied teen die drang om hierdie 'monster' te vernietig."
(emphasis added)

The learned judge of appeal stated the following (at 958 C):
"Haar getuienis noop my tot die gevolgtrekking dat haar gees op die kritieke oomblik
erg versteurd was en dat haar weergawe van haar gemoedbewegings bestaanbaar is
met 'n drang waarteen sy nie kon weerstand bied nie."
(emphasis added)

In the view of Viljoen JA the appellant was entitled to an acquittal.  Boshoff AJA was
of the view that the appellant had the capacity to distinguish between right and wrong
and to act accordingly.  At 967 C Boshoff AJA states:
"Trouens, uit haar getuienis is af te lei dat sy deurgaans die vermoë gehad het om die
ongeoorloofdheid van haar handeling te besef en dat sy versuim het om haar
wilsbeheer, 'n vermoë waaroor sy subjektief beskik het, uit te oefen."

Jacobs JA was of the view that where an accused had the ability to distinguish between
right and wrong, the defence of irresistible impulse (which he considered to be the
basis of the appellant’s defence) would only be available where a mental illness or
defect was present.  On the facts of the case Jacobs JA and Boshoff AJA constituted
the majority, dismissing the appeal.  On the law Boshoff JA and Viljoen JA formed the
majority holding that in principle emotional stress could lead to an absence of criminal
capacity and an acquittal.

[32] S v Laubscher 1988 (1) SA 163 (A) is an oft-cited case on the test for non-
pathological criminal capacity based on a psychological breakdown.  In that case a 23-
year-old medical student whose intelligence level was that of a genius, discharged 21
rounds of ammunition into various rooms of a house in which his wife and parents-in-
law resided.  In consequence, his father-in-law was killed. At his trial on charges, inter
alia, of murder and attempted murder, it was contended that at the relevant time he had
suffered a total psychological breakdown or disintegration of his personality, of a
temporary nature, with the effect that he acted involuntarily.  The incident in question
was preceded by verbal exchanges and a protracted struggle by the appellant to have
his wife and child return to him from her parental home.  Joubert JA states the
following (at 166 G – 167 A):
"Om toerekeningsvatbaar te wees, moet 'n dader se geestesvermoëns of psigiese
gesteldheid sodanig wees dat hy regtens vir sy gedrag geblameer kan word.  Die
erkende psigologiese kenmerke van toerekeningsvatbaarheid is:
1.
Die vermoë om tussen reg en verkeerd te onderskei.  Die dader het
die onderskeidingsvermoë om die regmatigheid of onregmatigheid
van sy handeling in te sien.  Met ander woorde, hy het die vermoë om
te besef dat hy wederregtelik optree.
2.
Die vermoë om ooreenkomstig daardie onderskeidingsvermoë te
handel deurdat hy die weerstandskrag (wilsbeheervermoë) het om die
versoeking om wederregtelik te handel, te weerstaan.  Met ander
woorde, hy het die vermoë tot vrye keuse om regmatig of onregmatig
te handel, onderworpe aan sy wil.
Ontbreek een van hierdie twee psigologiese kenmerke dan is die dader

ontoerekeningsvatbaar, bv waar hy nie die onderskeidingsvermoë het om die
ongeoorloofheid van sy handeling te besef nie.  Insgelyks is die dader ten spyte
daarvan dat hy wel die onderskeidingsvermoë het tog ontoerekeningsvatbaar waar sy
geestesvermoë sodanig is dat hy nie die weerstandskrag het nie."

For reasons that will be discussed later in this judgment, it is perhaps unfortunate that
the word “weerstandskrag” was used.  This follows on the use of the same word by
Viljoen JA in Campher's case, supra.  Considering the appellant's conduct against the
aforementioned test, Joubert JA found that although the appellant’s actions had been
irrational and not in keeping with his normal personality, he had acted voluntarily as he
had powers of discernment and restraint, so that he was criminally accountable.
Joubert JA held that the trial court was correct to take into account the goal-directed
and purposeful acts by the appellant, before and during the shooting incident, as well
as the fact that he managed to drive away from the house in his motor vehicle
afterwards.  The following is stated at 173 B:
"Ofskoon die appellant se optrede irrasioneel was en nie in ooreenstemming met sy
gewone persoonlikheid was nie, het hy wel willekeurig opgetree omdat hy
onderskeidingsvermoë en weerstandskrag (wilsbeheervermoë) gehad het sodat hy
nie ontoerekeningsvatbaar was nie maar wel verminderd toerekeningsvatbaar.  Na my
oordeel het die Verhoorhof tereg tot hierdie bevinding op die bewese feite bo redelike
twyfel geraak."
(emphasis added)

[33] In S v Calitz 1990 (1) SACR 119 (A) the accused, a sergeant in a counter-

insurgency unit in the army, assaulted and beat a villager in Ovamboland to death.  He
raised the defence of non-pathological criminal incapacity, due to a raging anger that
was said to have arisen because the deceased had exchanged words with him after he
drove an army vehicle over a pole that had a ritual significance for the village.  The
appellant in that case recalled details of the event in question.  After he killed the
deceased he involved his men in a cover-up operation.  He planted a Libyan uniform
and arms and ammunition in the vicinity of the deceased’s house.  He radioed his base
and informed them that he had killed one of the enemy.  After the deceased's family
laid a charge of murder the appellant admitted killing the deceased and resorted to the
defence of non-pathological criminal incapacity, due to his anger.  After considering
the psychiatric evidence for the State and on behalf of the appellant, Botha JA
concluded as follows (at 127 g):
"Volgens die getuienis van die psigiaters sou 'n mens nie van iemand wat in so 'n
toestand verkeer het, verwag om 'n deurlopende gedetailleerde relaas van die gebeure
tydens so 'n episode te kan verstrek nie.  In die getuienis van die appellant, is daar
egter 'n aansienlike mate van redelike fyn detail van die verloop van die aanval.  Dit
is verder voor die hand liggend, soos dr Fourie ook getuig het, dat waar iemand
normaalweg baie kwaad is sonder dat hy in sy onbeheerstheid in 'n verstandelike
beneweling verkeer, hy nie elke fyne besonderheid van die gebeure sal kan onthou
nie.  Met dié mate van bewustheid van wat om hom aangegaan het, en van sy
handeling tydens die aanval, wat die appellant in sy getuienis kon weergee, was die
Verhoorhof, na my mening, geregtig gewees om tot die gevolgtrekking te kom dat die
appellant nie in 'n tydelike verstandelike beneweling verkeer het nie, en dat hy wel

toerekeningsvatbaar was."

[34] S v Wiid 1990 (A) is the only case in this Court in which the defence of non-
pathological criminal incapacity due, inter alia, to emotional stress was upheld on the
facts.  In that case the appellant shot and killed her husband.  The deceased had been
unfaithful throughout their marriage.  He had assaulted the appellant on two occasions
before the shooting incident.  Shortly before the incident the appellant discovered that
the deceased was conducting yet another affair.  On the day of the incident when the
deceased returned home she confronted him.  He denied the accusation and shortly
thereafter attempted to record their conversation on a tape recording machine.  She
attempted to stop him from doing so and in the result the machine fell to the ground.
The deceased assaulted the appellant quite severely, breaking her nose and a tooth, and
splintering other teeth in the process.  Her spectacles were broken and her mouth was
bleeding.  After the assault the deceased chased the appellant out of their bedroom,
threatening her with a further assault.  Shortly thereafter she shot him.  After the
shooting she was heard to ask:  "Wat het ek gedoen?"  A policeman testified that when
he arrived at the scene she appeared bewildered and disoriented.  The appellant's
recollection of the day on which the incident occurred was vague and she was unable
to recall the shooting itself.  She recalled that the deceased had said he was going to
kill her.  She saw his pistol nearby but could not recall that she picked it up.  She

remembered hearing shots. In the time leading up to the incident the appellant was in a
state of anxiety and was highly emotional.  The psychiatric evidence was to the effect
that given the intake of sedatives and alcohol and lack of eating, combined with the
severe assault and the threat of death, the appellant may well have lacked criminal
capacity altogether and that she may well not have been able to distinguish between
right and wrong.  The trial court held that it was reasonably possible that the appellant
may have been concussed after the assault and during the time that she fired the fatal
shot.  Goldstone JA said the following at 569 c – e:
"Na my mening, indien al die feite in ag geneem word, bestaan daar redelike twyfel
oor die vraag of die appellante willekeurig opgetree het.  Dat sy bewustelik en
opsetlik die oorledene wou doodskiet is nie met appellante se persoonlikheid en
karaktertrekke te versoen nie.  Dit is die effek van haar eie getuienis en word deur
Gillmer en Plunkett gestaaf.  Haar oorblywende en steeds sterk liefde vir die
oorledene rym nie met die doelbewuste doodmaak van die oorledene nie.  Die feit dat
sy sewe skote geskiet het, is aanduidend van onbeheersde optrede."
(emphasis added)

The appeal was upheld and the appellant acquitted.
[35] In S v Kalogoropoulos 1993 (1) SACR 12 (A) the appellant was a jealous
husband who shot and killed his domestic servant and his business partner.  He also
shot and wounded his wife and his partner’s wife.  He was convicted by the trial court,
inter alia, on charges of murder and attempted murder.  The appellant suspected that

his wife was having an affair with his business partner.  After consuming a quantity of
alcohol he armed himself with a revolver and confronted his wife and partner with an
accusation that they had been intimate that afternoon.  They denied it and a heated
altercation ensued.  The appellant fired a shot that struck and wounded his wife.
Thereafter he fired a number of shots in quick succession, killing his business partner
and wounding his partner’s wife.  He then drove home where he opened his safe,
armed himself with a pistol and proceeded to the domestic servant's quarters. On his
way there he shot and killed a dog.  On his arrival at the room where the servant lived
he shot and killed her, saying that he could not trust her anymore.  The appellant’s
defence to the charges was that owing to the vast quantity of alcohol consumed by him
and the provocation to which he had been subjected he lacked the necessary criminal
capacity.  The appellant’s defence was rejected and the appeal dismissed.  Botha AJ in
rejecting the appeal reasoned as follows (at 25 h – 26 a):
"The shooting in the office could not have lasted for more than a couple of seconds.
Immediately before that short space of time the appellant was in control of himself;
that is not in doubt.  Immediately after it he was again in control of himself; so Dr
Vorster says herself (as I have indicated, for good and compelling reasons).  He then
replaces the emptied revolver with a loaded pistol and, having just shot three people,
proceeds to shoot a fourth.  On the face of his conduct before and after, it seems to
me almost inconceivable that in the brief interval in between he was deprived of self-
control... The appellant shot Dora (and the dog) because he was angry and
emotionally upset, but while in a frame of mind where he could exert self-control."

[36] In S v Potgieter 1994 (1) SACR 61 (A) the appellant, a 36 year-old woman,
admitted that she shot and killed her lover who had abused her physically and
emotionally over a number of years.  In the trial court she raised a defence of sane
automatism" and in the alternative, that she was impelled by an irresistible impulse and
that she therefore lacked the legal capacity to commit a criminal act.  The trial court
rejected her defence and she was found guilty of murder.  On appeal, Kumleben JA
equated the defence raised by the appellant with the defence dealt with in the
Laubscher, Calitz and Wiid cases.  At 73 g – i, Kumleben JA cited the following
passage from Hiemstra’s Suid Afrikaanse Strafproses (4de uit) at 189 with approval:
"Daar moet getuienis van die kant van die beskuldigde wees wat sterk genoeg is om
twyfel te laat ontstaan oor die vrywilligheid van die beweerde daad of versuim.  Dit
moet gerugsteun word deur geneeskundige of ander deskundige getuienis wat
aantoon dat die onwillekeurige gedraging heel moontlik te wyte was aan oorsake
anders as geestesongesteldheid of geestesgebrek.  As aan die einde van die verhoor
daar twyfel bestaan of die gedraging willekeurig was of nie, moet die beskuldigde die
voordeel van die twyfel geniet."
(emphasis added)

The learned judge of appeal also cited Prof CWH Schmidt’s article Laying the
Foundation for a Defence of Sane Automatism in the 90 (1973) SALJ 329 at 333
where the learned author states:
"…the accused has to adduce evidence from which a reasonable alternative inference
can be drawn' that he acted unconsciously."

Kumleben JA states the following at 73 j – 74 b:
"The need for careful scrutiny of such evidence is rightly stressed.  Facts which can
be relied upon as indicating that a person was acting in a state of automatism are
often consistent with, in fact the reason for, the commission of a deliberate, unlawful
act.  Thus – as one knows – stress, frustration, fatigue and provocation, for instance,
may diminish self-control to the extent that, colloquially put, a person 'snaps' and a
conscious act amounting to a crime results.  Similarly, subsequent manifestations of
certain emotions, such as fear, panic, guilt and shame, may be present after either a
deliberate or an involuntary act has been committed."
(emphasis added)

The Court held that the appellant was an untruthful witness in many respects and
concluded that the factual foundation for the defence was absent.  The court took into
account that the appellant's actions were complex and goal-directed and had difficulty
in accepting that it could all have been executed automatically.  The appellant's defence
was rejected and the appeal against her conviction dismissed.
[37] In S v Kensley 1995 (1) SACR 646 (A) the appellant shot and killed two people,
after he discovered that the objects of his affections were female impersonators.  His
defence was that he lacked criminal capacity attributable to non-pathological factors,
namely, a combination of severe emotional stress and intoxication.  Van den Heever
JA in dealing with the onus resting on the state, to prove beyond a reasonable doubt not
only that an accused could distinguish between right and wrong but that he was

capable of acting in accordance with that distinction, after reference to the decisions in
the Calitz, Campher and Wiid cases, said the following at 658 g – j:
"Those decisions cannot possibly mean that the ipse dixit of an accused that in the
given situation, whatever that might be, he was unable to control himself (giving rise
to a theoretical possibility as postulated by Dr Teggin that that could be so) must lead
to an acquittal.  Criminal law for purposes of conviction – sentence may well be a
different matter – constitutes a set of norms applicable to sane adult members of
society in general, not different norms depending upon the personality of the
offender.  Then virtue would be punished and indiscipline rewarded: the short-
tempered man absolved for the lack of self-control required of his more restrained
brother.  As a matter of self-preservation society expects its members, even when
under the influence of alcohol, to keep their emotions sufficiently in check to avoid
harming others and the requirement is a realistic one since experience teaches that
people normally do.  Compare s v Swanepoel 1983 (1) SA 434 (A) at 458A – D. It
follows that the evidence on which a defence of sane criminal incapacity due to
intense emotion is based, should be viewed with circumspection."

The court held that the state had discharged the onus and that the appellant had been
rightly convicted.
[38] In S v Henry 1999 (1) SACR 13 (SCA) the appellant shot his ex-wife and her
mother after an argument at her home.  He was charged with two counts of murder and
a contravention of the Arms and Ammunition Act 75 of 1969.  He raised a defence of
sane automatism and testified that he was in a rage, heard loud noises zinging in his ear
and heard shouting.  The trial court rejected his defence and convicted him on all three

counts.  In dealing with his appeal Scott JA said the following (at 20 c – e):
"By the very nature of things the only person who can give direct evidence as to the
level of consciousness of an accused person at the time of the commission of the
alleged criminal act, is the accused himself.  His ipse dixit to the effect that this act
was involuntarily and unconsciously committed must therefore be weighed up and
considered in the light of all the circumstances and particularly against the alleged
criminal conduct viewed objectively.  It is not sufficient that there should merely
have been a loss of temper.  Criminal conduct arising from an argument or some or
other emotional conflict is more often than not preceded by some sort of provocation.
Loss of temper in the ordinary sense is a common occurrence.  It may in appropriate
circumstances mitigate, but it does not exonerate.  On the other hand, non-
pathological loss of cognitive control or consciousness arising from some emotional
stimulus and resulting in involuntary conduct, i e psychogenic automatism, is most
uncommon.  The two must not be confused."
(emphasis added)

The court considered the absence of a trigger mechanism and concluded that the
appellant's conduct at the time of and after the shooting was indicative of conscious
behaviour and inconsistent with automatism.  His appeal was dismissed.
[39] In S v Cunningham 1996 (1) SACR 631 (A) the appellant was an accountant in
his late thirties.  After a collision between a motor vehicle driven by the appellant and
two cyclists he was charged in the trial court with murder, attempted murder and three
contraventions of the Road Traffic Act 29 of 1989.  The appellant was driving on the
wrong side of the road and went through a red traffic light before colliding with the
cyclists.  One of the cyclists was killed and another was left paralysed.  The statutory

offences related to the appellant's failure to stop immediately after the collision and
ascertain the nature and extent of the damage and injury sustained in the collision.  At
his trial the appellant raised a defence of "sane automatism".  The trail court rejected
this defence and held that he had been negligent.  On the count of murder he was
convicted of culpable homicide. He was acquitted on the charge of attempted murder.
The impact of the collision had been severe and the appellant had been in a confused
state thereafter.  He was consequently acquitted on the statutory charges.  On appeal to
the Cape Provincial Division the appellant's conviction of culpable homicide was
confirmed.  The appellant appealed to this court against his conviction of culpable
homicide.  In the trial court a psychiatrist who testified in support of the appellant's
case held the view that the most plausible explanation for the appellant's behaviour was
automatism.  A psychiatrist who testified on behalf of the state held the view that an
inference of automatism was not justified.  The magistrate in the trial court preferred
the view of the psychiatrist who testified in support of the state's case.  Scott JA who
delivered the judgment of this Court stated the following at 635 g – h:
"Criminal responsibility presupposes a voluntary act (or omission) on the part of the
wrongdoer.  Automatism therefore necessarily precludes criminal responsibility."
(emphasis added)

The learned judge of appeal, in dealing with the natural inference that assists the state,

said the following at 635 j:
"In discharging the onus upon it the State, however, is assisted by the natural
inference that in the absence of exceptional circumstances a sane person who engages
in conduct which would ordinarily give rise to criminal liability does so consciously
and voluntarily.  Common sense dictates that before this inference will be disturbed a
proper basis must be laid which is sufficiently cogent and compelling to raise a
reasonable doubt as to the voluntary nature of the alleged actus reus and, if
involuntary, that this was attributable to some cause other than mental pathology."
(emphasis added)

Scott JA accepted that before the collision the appellant was emotionally upset and was
preoccupied with problems to the extent that he was not concentrating on what was
happening around him.  He considered the lack of an event that would serve as a
trigger for automatism.  The learned judge of appeal had regard to the manner of the
appellant's driving before the collision and held that no factual foundation was
established to displace the inference of voluntariness.  The defence was rejected.
[40] In S v Francis 1999 (1) SACR 650 (SCA) the appellant shot and killed a
woman with whom he had a relationship.  Before killing her he shot her father in the
elbow.  In the trial court the appellant was convicted of murder and assault with intent
to do grievous bodily harm.  His defence that he acted in a state of non-pathological
criminal incapacity was rejected.  Schutz JA in discussing the appellant's defence states
the following at 651 h:
"He contends that he acted in a state of non-pathological criminal incapacity ('sane

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

As can be seen, the learned judge equated sane automatism with non-pathological
criminal incapacity.  A psychiatrist who was called by the state pointed to various
actions of the appellant which he said showed an awareness of what he was doing,
were purposeful and some of them of some complexity.  Schutz JA agreed that there
was a series of deliberate actions by the appellant before, during and after the acts in
question and he was able to distinguish his victims.  The appellant was also found to
have lacked credibility.  His defence was rejected.
[41] In S v Kok 2001 (2) SACR 106 (SCA) this Court accepted that the appellant, a
policeman who shot and killed a colleague and her husband, was subjected to stress at
work and was in a depressed state at the time of the shooting.  It concluded that when
he arrived at the deceaseds' home he was in a confrontational and belligerent mood.
He recalled going to the front door.  He testified that he lost his temper as a result of
something one of the deceased had said to him.  Scott JA said the following at 115 j –
116 a:
"Loss of temper, that is to say a failure to control one's emotional reactions, is not to
be confused with a loss of cognitive control (see S v Henry 1999 (1) SACR 13 (SCA)
at 20 d – f).  The fact that he could recall these events some days later indicates that
he knew what he was doing and is inconsistent with the hypothesis that he was re-
enacting some memory in a dissociative state."

The court rejected the appellant's assertion that he had no recollection of the shooting,
concluding that his behaviour after the shooting was not what one would have expected
of someone who had no recollection of the crucial event.  The court rejected his
defence.
[42] From the judgments of this Court referred to in the preceding paragraphs it is
clear that in order for an accused to escape liability on the basis of non-pathological
criminal incapacity he has to adduce evidence, in relation to the second leg of the test
in Laubscher's case, from which an inference can be drawn that the act in question
was not consciously directed, or put differently, that it was an involuntary act.  It is
clear from the decisions in the Potgieter, Henry, Cunningham and Francis cases that
the defence has been equated with the defence of automatism.
[43] The decisions in the preceding paragraphs show that this Court has approached
defences of non-pathological criminal incapacity with caution.  In the Henry case the
phenomenon is said to be "most uncommon".  In dealing with a natural inference that
people act consciously and voluntarily this court has repeatedly stated that the
inference is disturbed in "exceptional cases".  In the Wiid case, supra, the only case in
this Court in which the defence was upheld, there was doubt whether the appellant had
the ability to distinguish between right and wrong and to act in accordance with that
distinction.  In that case not only were the stressors severe and aggravated by the intake

of a sedative, but also the immediate circumstances and the concussion suffered by the
appellant were so extreme so as to persuade the psychiatrists and the Court that there
was a reasonable doubt about her criminal capacity.  It is perhaps because of his
repeated exposure to the asserted defence that Dr Kaliski is so sceptical.  His call for a
set of compelling facts before he concedes the validity of the defence in a given case is
in line with the dicta referred to above.  Dr Kaliski equated automatism with the
defence asserted by the appellant in the present case and his explanation makes it clear
that in his view the only circumstance in which one could "lose control" is where one's
cognitive functions are absent and consequently one's actions are unplanned and
undirected.  His view is in line with the decisions of this Court.
[44] The approach of this Court in the decisions discussed in this judgment, has been
to carefully consider the accused's actions before, during and after the event.  It took
into account whether there was planned, goal-directed and focused behaviour.  In the
decisions referred to, a determination was made about whether an accused was truly
disorientated - an indicator of temporary loss of cognitive control over one's actions
and consequent involuntary behaviour.  This Court has repeatedly stated that a detailed
recollection of events militates against a claim of loss of control over ones actions.
[45] In the Henry, Kensley and Kok cases, this Court warned against confusing loss
of temper with loss of control.  In the Henry and Kensley cases, as can be seen from

the dicta referred to earlier in this judgment, this Court, in assessing an accused
person's evidence about his state of mind, weighed it against his actions and the
surrounding circumstances and considered it against human experience, societal
interaction and societal norms.  Griesel J at 183 h – i of his judgment did the same,
when he considered the appellant's behaviour against the behaviour of hundreds of
thousands of people who on a daily basis find themselves in the appellant's position
and who do not respond as he did.  I will in due course deal with criticisms of this
approach.
[46] I turn to consider decisions of the High Court on which the appellant relies.  In
S v Arnold 1985 (3) SA 256 (C) a case decided a year after the decision in S v
van Vuuren 1983 (1) SA 12 (A) the accused, a 41 year-old man, shot and killed his 21
year-old wife. The accused claimed that at the time the fatal shot was fired, because of
emotional stress he did not have criminal capacity. He claimed that he could not
remember aiming the firearm and pulling the trigger. His description of events prior to
and after the shooting was detailed and precise. After the shooting he was shocked and
remorseful but showed presence of mind, attempting to summon the police and an
ambulance. He had entered his home with a firearm in his hand. He was emotionally
distraught and angry about earlier events and was subjected to a number of stressors
such as financial problems and his deteriorating relationship with his mother-in-law.

His wife enjoyed flaunting her natural assets and taunting him.  Shortly before the
shooting she had leant over while talking to him, provocatively revealing her breasts
while stating her intention to take up a career as a stripper.  It is clear from a reading of
the judgment that the court saw the accused in a sympathetic light.  The psychiatric
evidence on behalf of the appellant was to the effect that his conscious mind was so
“flooded” by emotions that it interfered with his capacity to appreciate what was right
or wrong, and because of his emotional state he may have lost the capacity to exercise
control over his actions.  The state did not call any psychiatrist nor contest the opinions
expressed by the psychiatrist who testified in support of the appellant.  Burger J
concluded that there was reasonable doubt that when the accused killed the deceased
that he was acting unconsciously.  The learned judge then stated (at 263 H – I):
"Assuming, however, that the accused was acting consciously, the further question
arises as to whether he had criminal capacity ('toerekeningsvatbaarheid').  A person is
said to be criminally responsible or to have criminal capacity when he is able to
appreciate the wrongfulness of his act and act accordingly."

By putting it in these terms the learned judge created the impression that one can act
consciously but at the same time not be able to act in accordance with one's
appreciation of what is right and wrong.  The accused's ipse dixit about his state of
mind was readily accepted by Burger J.  His focused and goal-directed behaviour
before, during and after the event was not given adequate weight.  The test for criminal

incapacity as laid down in the decisions of this Court was misapplied.
[47] In S v Nursingh 1995 (2) SACR 331 (D) the accused, a university student, shot
and killed his mother, grandfather and grandmother.  He raised the defence of non-
pathological criminal incapacity.  The accused had a predisposition to emotional
outbursts.  His evidence shed very little light on events immediately before the
shooting.  The evidence of a young friend, Soni, who was elsewhere in the house
assisted the Court to piece together the events that led to the death of the deceased.
There was evidence that the accuseds mother abused him sexually and it was possible
that he may have rejected overtures from her immediately before the shooting took
place.  Soni heard an argument take place and heard the accused’s mother’s voice
raised to a screaming pitch. Soni arrived at the scene after the shooting had occurred.
He found the accused in a bewildered state, at times babbling incoherently.  They both
fled the scene.  According to Soni when they realised the enormity of what had
occurred they formed a plan to avoid implication. It is clear that the abuse, sexual and
otherwise that the accused suffered at the hands of his mother over a long period
weighed heavily with the Court.  The evidence of a psychiatrist and a psychologist was
that having regard to the appellant’s predisposition to emotional outbursts and the
sudden and immediate threat to him by his mother, in the context of the prior abuse, he
might have undergone a state of altered consciousness with a temporary destruction of

his intellect.  The state did not call an expert in rebuttal.  The court saw the firing of the
pistol as a mere motor function.  The accused and Soni were believed in their version
of events and the appellant was acquitted.
[48] The Nursingh case does leave one with a sense of disquiet at an acquittal in the
face of the enormity of the deed.  The case however does not provide support for the
appellant.  In that case there was evidence that the accused’s intellect had been
destroyed.  The goal-directed actions by the accused were limited to the multiple
shooting.  Subsequent to the event he was babbling incoherently and was crying.  The
trigger was one that apparently had built up from years of physical, emotional and
sexual abuse.  The combination of factors was extreme and unusual.
[49] Less easy to explain is the case of S v Moses 1996 (1) SACR 701 (C).  The
accused and the deceased developed a homosexual relationship.  On the night in
question, immediately after unprotected anal intercourse, the deceased announced that
he had AIDS.  This angered the accused and a flood of thoughts entered his mind.  He
thought about his own death and about breaking the news to his family.  In his fury he
attacked the deceased with an ornament.  Thereafter he ran to the kitchen and obtained
a small knife with which stabbed the deceased.  He returned to the kitchen to fetch a
bigger knife with which he cut the deceased’s throat and wrists.  The accused testified
that when he cut the deceased’s throat and wrists he saw what he was doing and could

not stop himself.  After the event he was shocked and sat in the passage realising that
he had committed what he thought was a crime.  He tried to remove his fingerprints
from objects he had touched and attempted to clean blood stains.  He drove off in a
motor vehicle and gave a hitchhiker a lift, unsuccessfully attempting to seduce him to
create an alibi.  After his arrest he made a false statement to a magistrate, later deciding
to tell the truth.  The hitchhiker testified and stated that the accused looked relaxed and
normal.  A post-mortem examination confirmed that the deceased was HIV positive.
The accused testified that his father had sexually abused him.  A clinical psychologist
who testified in support of the accused’s case stated that the accused was prone to rage
reactions and had poor impulse control.  When provoked he would know what he was
doing but would have been unable to stop himself.  The clinical psychologist did not
contend that the accused had acted in a state of automatism.  A psychiatrist who
testified in support of the accused’s case agreed with the psychologist.  He saw the
pronouncement by the deceased of his HIV condition as a trigger to the accused’s
conduct, which in his view, the accused related to the abuse at the hands of his father.
The psychiatrist testified that in a state of rage one’s capacity to "retain control" is
"definitely impaired".  Against this evidence the state led the evidence of Dr Jedaar,
who at that time was still employed at Valkenberg Hospital.  He postulated the view
that one can never lose control except in a state of automatism.  He stated that even in a

state of extreme rage one still has cognitive ability.  Following upon a state of
automatism one is usually bewildered.  Jedaar held the view that the accused’s conduct
was not uncontrolled or involuntary and that the killing was not committed in a state of
automatism.  Each act was planned, goal-directed and controlled.  The court in the
Moses case, dismissed Jedaar’s view, stating that it flies in the face of South African
law.  The mistake that Jedaar is accused of making is that the bulk of his evidence was
directed at showing that the accused had not acted in a state of sane automatism.  The
court in the Moses case referred to the Wiid, Laubscher, Campher, Potgieter cases as
support for its view that the defence of non-pathological criminal incapacity is distinct
from the defence of automatism.  Jedaar, as we can see, has undergone a conversion
since he testified in that case.
[50] Another case that is difficult to explain is S v Gesualdo 1997 (2) SACR 68 (W).
In that case the accused shot and killed his friend.  Their relationship deteriorated when
the deceased attempted to cut the accused out of a business venture, which was the
latter's idea in the first place.  They had engaged in public arguments and the deceased
resorted to foul language.  There were stormy conversations on the telephone.  The
deceased had threatened the accused, which resulted in the accused visiting the police
for assistance.  Two days before the shooting the accused was involved in a discussion
with the deceased and became very angry.  In the presence of a witness he said he

would visit the deceased at his factory and that the witness should not get involved.
The witness, a Mr Molina, testified that the accused’s anger had been building up
progressively as a result of the deceased’s behaviour.  The accused testified that on the
morning of the shooting he drove around aimlessly.  He had his firearm on him.  From
the time he arrived at work he recalled breaking a machine but recalls nothing of the
shooting incident.  Mr Molina testified that the accused entered the deceased’s
premises carrying a packet in his hand.  He pulled a firearm from it and pointed it at
the deceased.  The deceased taunted the accused and challenged him to discharge the
firearm.  The accused shot and killed the deceased and pointed the firearm at
Mr Molina before running away.  He was found several hours later wandering around
and did not appear to comprehend why he was being arrested.  The accused was taken
to his flat where he pointed out the firearm.  The court accepted that he was disoriented
after the event.  The two psychiatrists who testified did not doubt the genuineness of
the accused’s amnesia.  The psychiatrist who testified in support of the accused’s case
stated that he was to some extent aware of what he was doing and able to distinguish
between right and wrong but was unable to act in accordance with that distinction
because he had lost control of himself.  He did not contend that the accused acted in a
state of automatism.  Dr Vorster, who was called by the State, testified that the accused
had not acted in a state of automatism as he was capable of taking complex decisions

and actions were goal-directed.  Like the court in the Moses case, the court in the
Gesualdo case rejected the view of the state psychiatrist on the basis that it flew in the
face of decisions of this Court, which in its view held that persons who could
distinguish between right and wrong and who had not acted automatically may
nevertheless, because of emotional stress, have lost control of their actions to such an
extent that they would escape criminal liability.
[51] In South African Criminal Law and Procedure (Vol 1) by JM Burchell, supra,
the learned author, in dealing with provocation and emotional stress expresses disquiet
at the growing trend in court decisions, excusing acts committed by people driven to
them by emotions such as jealousy and anger.  The following appears at 202:
"The general approach in most legal systems is that provocation does not excuse from
criminal liability.  People are expected to control their emotions.  Furthermore, in
many cases the response to the provocation is in the nature of a revenge for harm
suffered.  Since it is a fundamental principle of modern systems of criminal justice
that vengeance for harm suffered must be sought through the public criminal process
and not by personal self-help, the criminal law is precluded from admitting the
provocation should be a justification for unlawful conduct."

In the Moses and Gesualdo cases we appear to have moved from the fundamental
position that provocation is a mitigating factor to a position where it has become an
exculpatory factor.  The approach adopted by this court in the decisions discussed
earlier was not followed in the Arnold, Moses and Gesualdo cases.

[52] In an article in South African Journal of Criminal Justice (2001) 14 pp 206 -
216 entitled S v Eadie:  Road Rage, Incapacity and Legal Confusion Ronald Louw,
of the University of Natal, takes a critical look at the judgment of the Court below and
the judgments in the Nursingh and Moses cases.  He is particularly critical of the
decision in the Moses case, stating the following (at 216):
"The acquittal in Moses leaves us with a dangerous precedent.  In future whenever a
person flies into an 'annihilatory rage' and kills somebody, irrespective of the reason
for the rage and the relationship between the accused and the deceased, the killing
will be permissible.  This subjects society to the whims of the short-tempered.  This
is wrong.  If we follow Moses then, unlike in Eadie, those who kill in circumstances
of road rage, can expect to be acquitted."

[53] This unsatisfactory state of affairs arose because of a misapplication and a
misreading of decisions of this Court.  Burchell and Hunt in South African Criminal
Law and Procedure (2nd ed) Vol 1, in the passage quoted in paragraph [24] of this
judgment, adopt the position that when one is dealing with a reflexive or automatic act
an accused would be exempt from criminal liability on the ground that his act was not
one of which the criminal law takes cognisance.  The second leg of the test in
Laubscher’s case is read to mean that one looks to see whether in all the circumstances
of the case the accused could not resist or refrain from this act or was unable to control
himself to the extent of refraining from committing the act.

[54] Likewise, Snyman in Criminal Law, supra, at 152 - 153 states:
"The (a) inability to act in accordance with an appreciation of the wrongfulness of the
act (in other words the absence of the conative mental function) must not be confused
with (b) the inability of a person to subject his bodily movements to his will or
intellect.  Inability (b) deals with the question of whether X has committed an act in
the criminal-law sense of the word.  If inability (b) is absent, it means that X has
acted involuntarily and that there was no act or conduct as these terms are understood
in the criminal law.  An example of this is where X walks in his sleep.  The crucial
question is whether X is capable of controlling his physical (or motor) movements
through his will.  On the other hand inability (a) has nothing to do with the question
of whether X has acted or not, but forms part of the test to determine capacity.  Here
X does have the power to subject his bodily movements to his will, but what he is
not capable of doing, is to properly resist the temptation to commit a crime.  In
short, in (a) the mental power of resistance which a normal person has is absent,
whereas in (b) the power or ability physically to control one's bodily movements is
lacking."
(emphasis added)

[55] Ronald Louw, in taking a critical look at the judgment of the Court below states,
(at 207) of his article, supra:
"This lack of clarity has been exacerbated by confusing decisions of our courts.  This
confusion is partly a result of its application in practice.  This note seeks to identity
some of the confusion in an attempt to chart a clearer way forward.  The court in
Eadie acknowledges this confusion and tries to clarify the problem to some extent.
Unfortunately I think the court adds to the confusion in two respects, namely in the
lack of a clear distinction between automatism and incapacity and, secondly, in the
implied assumption of an objective test for provocation defences."

In dealing with the now vexed question of automatism versus non-pathological
criminal incapacity the learned author states the following at 207:
"However, in one respect, capacity appears to be similar to conduct.  This relates to
the second leg of the capacity inquiry:  whether the accused was able to control
himself in accordance with his appreciation of right and wrong.  In other words,
capacity is absent where the accused lacks self-control.  It is far from clear in our law
when self-control is absent."

The learned author refers to the attempt by Griesel J to explain the distinction between
automatism and the defence of non-pathological criminal incapacity and the learned
judges conclusion that it is a distinction without a difference.  He suggests that this
added to the confusion and states that we must decide whether the two defences are
identical or distinct.
[56] In Ronald Louw’s view the decisions in the Nursingh and Moses cases, supra,
significantly added to the confusion. He submits that in the Nursing case the court
failed to distinguish between capacity and intention and furthermore confused the
capacity test itself. In this regard, at 208, he refers to the following passage from that
judgment (at 334 b - c):
"Now, although the onus is on the State to show that the accused had the necessary
criminal capacity to establish and found the mens rea necessary to commit an
offence, where an accused person relies on non-pathological causes in support of a
defence of criminal incapacity, then he is required to lay a factual foundation for it in
evidence, sufficient at least to create a reasonable doubt on the issue as to whether he

had that mental capacity."

In the Moses judgement the court drew a very clear distinction between automatism
and the lack of self-control. The learned author argues that in the wake of these cases
we are left with no clear understanding of what
“loss of control” means.  He submits that logic dictates that we cannot draw a
distinction between automatism and lack of self-control.  He argues that if the two
were distinct it would be possible to exercise conscious control over one’s actions (the
automatism test) while simultaneously lacking self-control (the incapacity test).  Louw
submits that if there is no distinction then the second leg of the test in the Laubscher
case should fall away: capacity would then be determined solely on the basis of
whether the person is able to appreciate the difference between right and wrong.  It
follows, so he argues, that once an accused has been shown to have capacity he may
then raise involuntariness as a defence.  At 211 he states:
"We will then also have a sounder principle and body of law to rely on in assessing
the defences.  Such a clearer distinction will, I argue below, deal correctly with the
more controversial judgments that have recently dogged the provocation defence."

[57] I agree with Ronald Louw that there is no distinction between sane automatism
and non-pathological incapacity due to emotional stress and provocation.  Decisions of
this Court make that clear.  I am, however, not persuaded that the second leg of the test

expounded in Laubscher’s case should fall away.  It appears logical that when it has
been shown that an accused has the ability to appreciate the difference between right
and wrong, in order to escape liability, he would have to successfully raise
involuntariness as a defence.  However, the result is the same if an accused's verified
defence is that his psyche had disintegrated to such an extent that he was unable to
exercise control over his movements and that he acted as an automaton - his acts would
then have been unconscious and involuntary.  In the present contest, the two are flip
sides of the same coin.  The judgments of this Court referred to earlier, as the
highlighted parts of relevant dicta show, see it as such.
[58] It appears to me to be clear that Joubert AJ was concerned to convey, in the
second leg of the test set in the Laubscher case, that the State has to prove that the acts
which are the basis for the charges against an accused were consciously directed by
him.  Put differently, the acts must not have been involuntary.  It is therefore not
surprising that the defence is described as sane automatism, first in the Potgieter case
and then later in the Cunningham, Henry and Francis cases.  In South African
Criminal Law and Procedure (Vol 1) General Principles of Criminal Law (3rd ed)
JM Burchell, in discussing voluntary conduct (at pp 41 – 42) states the following:
"Modern western philosophy derives the notion of individual responsibility from the
doctrine of free will.  This holds that all humans are born with the ability freely to
choose between different courses of action.  Having this freedom the individual a
justifiably be held to be responsible for the consequences of his chosen actions.  It

follows from this that persons will only be held criminally liable if their actions are
determined by their own free will.  This principle is expressed by the requirement
that for the purposes of the criminal law, a human act must be voluntary in the sense
that it is subject to the accused's will.  Where for some reason or another is deprived
of the freedom of his will, his actions are 'involuntary' and he cannot be held liable
for them."

Later on, at 42, the learned author sets out terms used by South African courts to
describe involuntary conduct:  "mechanical activity", "unconsciousness", "automatic
activity", "onwillekeurige handeling", and "involuntary lapse of consciousness".  The
learned author states that it is clear from these terms that voluntary conduct must be
regarded as conduct controlled by the accused's conscious will.  In my view the
insistence that one should see an involuntary act unconnected to the mental element, in
order to maintain a more scientific approach to the law, is with respect, an over-
refinement.
[59] Whilst it may be difficult to visualise a situation where one retains the ability to
distinguish between right and wrong yet lose the ability to control one’s actions it
appears notionally possible.
[60] The view espoused by Snyman and others, and reflected in some of the decisions
of our courts, that the defence of non-pathological criminal incapacity is distinct from a
defence of automatism, followed by an explanation that the former defence is based on
a loss of control, due to an inability to restrain oneself, or an inability to resist

temptation, or an inability to resist one’s emotions, does violence to the fundamentals
of any self-respecting system of law.  This approach suggests that someone who gives
in to temptation may be excused from criminal liability, because he may have been so
overcome by the temptation that he lost self-control - a variation on the theme: “the
devil made me do it”.  It is for this reason that it was suggested earlier that the use by
Joubert JA in Laubscher's case, supra, of the word "weerstandskrag" was unfortunate.
So too was the use of the word "drang" in Campher's case at 956 B, referred to in
paragraph [32] of this judgment.  These words suggest a resistance to urges or
temptation.  No self-respecting system of law can excuse persons from criminal
liability on the basis that they succumbed to temptation. Against the fundamental
principles restated by JM Burchell (quoted in paragraph [58] of this judgment) it is
with respect, absurd to postulate that succumbing to temptation may excuse one from
criminal liability.  One has free choice to succumb to or resist temptation.  If one
succumbs one must face the responsibility for the consequences.
[61] The time has come to face up to the fact that in some instances our courts, in
dealing with accused persons with whom they have sympathy, either because of the
circumstances in which an offence has been committed, or because the deceased or
victim of a violent attack was a particularly vile human being, have resorted to
reasoning that is not consistent with the approach of the decisions of this Court.

Mitigating factors should rightly be taken into account during sentencing.  When an
accused acts in an aggressive goal-directed and focused manner, spurred on by anger
or some other emotion, whilst still able to appreciate the difference between right and
wrong and while still able to direct and control his actions, it stretches credulity when
he then claims, after assaulting or killing someone, that at some stage during the
directed and planned manouevre he lost his ability to control his actions. Reduced to its
essence it amounts to this: the accused is claiming that his uncontrolled act just
happens to coincide with the demise of the person who prior to that act was the object
of his anger, jealousy or hatred.  As demonstrated courts have accepted such version of
events from accused persons.
[62] It is necessary to deal with one further aspect raised by the appellant, namely,
that in terms of our law a purely subjective test should be applied when the question of
incapacity is raised, and that Griesel J erred in resorting to objective criteria such as the
behaviour of hundreds of thousands of other motorists.
[63] In his article, supra, Ronald Louw submits that a second aspect of confusion in
the judgment of the Court below is the use of an objective test for determining criminal
capacity. The learned author refers to the Kensley case, where in his view a more
explicit objective test for capacity was set out at 658 h - j.  He asks the question:
should our law include some objective criterion in the capacity enquiry? He refers to

Burchell and Milton who, in Principles of Criminal Law (2nd ed) (1997), suggest that
such a shift might be appropriate but state that legislation or a bold judicial
reassessment is necessary.  Ronald Louw’s view is that neither development is likely,
nor necessary.  At 212 he states:
"Part of the current uneasiness with the provocation defence is that it is one that
seems easily to lead to an acquittal contrary to a common sense feeling of injustice..."

In the learned author’s view the problem does not lie in the subjective aspect of the test
but in its application.
[64] I agree that the greater part of the problem lies in the misapplication of the test.
Part of the problem appears to me to be a too-ready acceptance of the accused's ipse
dixit concerning his state of mind.  It appears to me to be justified to test the accused's
evidence about his state of mind, not only against his prior and subsequent conduct but
also against the court's experience of human behaviour and social interaction.  Critics
may describe this as principle yielding to policy.  In my view it is an acceptable
method for testing the veracity of an accused's evidence about his state of mind and as
a necessary brake to prevent unwarranted extensions of the defence.  The Kensley and
Henry cases adopted this approach.
[65] To maintain the confidence of the community in our system of justice the
approach of this Court, established over almost two decades and described earlier in

this judgment, should be applied consistently.  Courts should bear in mind that the
phenomenon of sane people temporarily losing cognitive control, due to a combination
of emotional stress and provocation, resulting in automatic behaviour, is rare.  It is
predictable that accused persons will in numbers continue to persist that their cases
meet the test for non-pathological criminal incapacity.  The law, if properly and
consistently applied, will determine whether that claim is justified.
[66] In the present case it is common cause that the appellant did not at the relevant
time act in a state of automatism.  Jedaar was emphatic about this.  In any event the
facts are such that the appellant should be held responsible for his actions.  Griesel J
may not have been completely accurate in his description of the asserted defence.
However, his conclusions on the facts of the case cannot be faulted.  He displayed the
necessary caution in his approach to the appellant’s evidence. He was right to consider
the appellant’s goal-directed and focused behaviour, before, during and after the
incident in question, as indicating presence of mind.  The appellant was angry with the
deceased and intended to vent that anger.  He intended to be violent and destructive.
All of his actions were performed with presence of mind.  How can we believe him
when he says that his directed and planned behaviour was suddenly interrupted by a
loss of control over his physical actions when those actions are consistent with the
destructive path he set out on when he was admittedly conscious?  The learned judge

correctly considered the appellant’s detailed account of the assault as an indicator of
consciousness.  Griesel J was correct to conclude that there were no signs of true
disorientation subsequent to the event.  The learned judge’s conclusion that the
appellant’s deceitful behaviour immediately after the event should count against him
cannot be faulted.  His finding that the appellant could not be believed about his state
of mind at the relevant time is wholly justified, as is the conclusion that the
psychiatrists' evidence has to be viewed against that fact.  In any event, Kaliski’s
approach to the asserted defence is to be preferred to that of Jedaar.  The dismissal of
Jedaar’s view of non-pathological criminal incapacity by the court in the Moses case,
appears to be an explanation for his more recent view.  A close reading of his evidence
in the present case reveals a number of inconsistencies and unsatisfactory explanations,
particularly where he is attempting to justify the appellant’s conduct.  Jedaar sought to
persuade the Court below that the event in 1990 played a part in the assault on the
deceased.  Even though the appellant testified about that event he did not in his
evidence in the Court below state that he relived that experience as testified to by
Jedaar.  I agree with the conclusions reached by the Court below that the event played
no part in the appellant’s conduct.  Jedaar testified that the appellant acted involuntarily
because of the absence of a directing mind, due to disturbed cognition, but was
unwilling to equate the appellant's actions with that of someone acting in a state of

automatism.  I find Jedaar's evidence wholly unpersuasive.  It appears to me to be
clear, as found by Griesel J, that the appellant lost his temper and did not lose control
over his actions.  The appellant is someone who is inclined to lose his temper.  Finally,
I agree with Griesel J’s conclusion that the appellant had the necessary intention to kill,
particularly if regard were had to the viciousness of the attack.  I agree with the learned
judge that Hill’s evidence is probable and that the attack took place as described by
Hill, notwithstanding the discrepancies in his evidence concerning, inter alia, the
number of blows he witnessed.  It does however make no difference if one were to
accept the appellants version of how he perpetrated the assault.  When he gave vent to
his anger and engaged in the savage attack directing blows and kicks at the head of the
deceased he must have foreseen the resulting death of the deceased.
[67] In sentencing the appellant Griesel J dealt with the phenomenon of road rage.
His judgment on sentence is reported as S v Eadie (2) 2001 (1) SACR 185 (C).  At
189 b – c the learned judge refers to the intense public and media interest in the
appellant's trial.  At 189 c – e he states the following:
"Part of the reason for this interest is, no doubt, because so many people can identify
with the phenomenon of so-called 'road rage'.  This is not a phenomenon that is
unique or limited to our society.  On one of the many Internet websites dealing with
the topic the following appears:
'Road rage is ubiquitous in America today.  Evidently the average commuter
in our cities, towns, villages and on our highways across the country is filled
with anxiety, stress, antagonism, discontent and fear that encourages such

incidents.  Most of the victims recognise a dramatic increase in road rage.
…What causes aggressive driving and habitual road rage?  And everybody
points to the same factors:  more cars more traffic more frustration more
stress more anger more anger more hostility more violence.  More cars
leads to more aggression on the roads, sort of like rats fighting in a crowded
colony.'
These symptoms sound all too familiar and similar to situations encountered on our
own roads every day."

[68] Shannon Hoctor of the University of Port Elizabeth, in an article entitled Road
rage and reasoning about responsibility SACJ (2001) 14 195, deals with the
phenomenon of road rage.  We were referred to this article by counsel for the appellant
as support for the argument that the Court below improperly conflated automatism and
non-pathological criminal incapacity.  That argument has already been dealt with.  My
reference to the article is limited to the following description of the phenomenon of
road rage at 195:
"Whilst the exact ambit of the term is rendered somewhat vague by misuse, it is clear
that road rage is a product of the confluence of a number of factors – aggression,
increasing frustration, the feeling of power associated with driving – which converge
to create a cauldron of stressful conditions…"

[69] In S v Sehlako 1999 (1) SACR 67 (W) an accused was convicted of murder
after he shot and killed the driver of a car that collided with his.  In sentencing the

accused Borchers J said the following at 71 i – j:
"As far as the offence is concerned, the murder can on the facts before me only be
attributed to what has come to be called 'road rage'.  It was obviously not
premeditated.  It arose directly from the fact that the accused believed that the
deceased was responsible for the collision which occurred between their respective
vehicles.  It was, however, a cold-blooded and wholly unnecessary killing.  This
country is suffering from an epidemic of violence which cannot be tolerated."

Later, at 72 b – c, the following appears:
"Each and every person who drives a vehicle can expect to be involved in a collision
at some or other time.  It is wholly unacceptable that such a person, even if he is the
cause of such collision, can be executed on the scene by the other driver.  In my view
even where an accused's personal circumstances are extremely favourable, as they are
in this case, they must yield to society's legitimate demand that its members be
entitled to drive the roads without risk of being murdered by other irate drivers."

I agree with these sentiments.
[70] There is no doubt that in the present case the appellant was provoked and that
the deceased behaved badly.  The deceased and the appellant had no business being on
the road in their state of insobriety.  The deceased's aggressive and provocative
behaviour did not entitle the appellant to behave as he did.  It must now be clearly
understood that an accused can only lack self-control when he is acting in a state of
automatism.  It is by its very nature a state that will be rarely encountered.  In future,
courts must be careful to rely on sound evidence and to apply the principles set out in

the decisions of this Court.  The message that must reach society is that consciously
giving in to one’s anger or to other emotions and endangering the lives of motorists or
other members of society will not be tolerated and will be met with the full force of the
law.
[71] For all the reasons mentioned earlier in this judgment the appeal is dismissed.

_________________
M S NAVSA
JUDGE OF APPEAL

CONCUR:
OLIVIER JA
STREICHER JA