Elevating culpa to crime

August 25th, 2015


By Safia Karriem

It is trite law that mens rea (either dolus or culpa) is an indispensable element for a crime that pertains to the infliction of bodily harm. This could sustain a charge of either assault or murder, depending on the result that eventuated. For both crimes, intention is a necessary element. However, murder has a culpa-cousin, in the form of culpable homicide, but for assault, there is no culpa variant. Why not?

As murder has a culpa-cousin and not assault, it begs the question as to the rationale for such different treatment in our law. It could be argued that public policy dictates that where the unlawful negligent conduct of an accused, which causes the death of another human being, the accused be subject to criminal responsibility. If public policy is indeed employed as a basis for such inequitable treatment, then the dictates of public policy should be interrogated and the soundness or otherwise be scrutinised.

Both with assault and murder, a form of violence or force is perpetrated against the body of a human being. With the simple distinction that the one crime results in death while in the other not. It merits the rhetorical question as to whether the death of the one victim in relation to murder and the survival of a victim in regard to an assault, is sufficient to justify the fact that murder has a negligent cousin in the form of culpable homicide and assault does not.

It is often said that murder is the ultimate crime, and it is hard to argue against it. However, the injuries that a victim could suffer post an offensive event can in many instances be debilitating, have severe physical, psychological, censor and/or mental consequences. Blindness, deafness, quadriplegia, mental incapacitation, or life-long medical problems can substantially impede one’s quality of life. In certain instances, this could be to such an extent that death could sometimes be seen to have been a more graceful outcome.

It is not only the victim that suffers, but in most instances, the immediate relatives such as the spouse, descendants and parents are affected directly and substantially. Where the victim is rendered a paraplegic and mentally disabled, a pleasurable healthy productive relationship is no longer possible between the victim and his or her relatives. For all practical purposes, in these circumstances, the children could effectively be regarded as having lost their parent.

Now, there is merit to the counter-argument that with mens rea, the guilty, or otherwise of the offending mind is in question, not the outcome or results of the offensive conduct. However, if public policy demands that murder has a culpa-cousin, it must necessarily have had regard to the outcome of the offending conduct, and not solely focused on the guilty mind. If this were not the case, then why does assault not have a negligent comparator?

I submit that in certain instances, the conduct of an accused could be so grossly negligent in causing injury to another person, that it offends one’s sense of fairness and justice if such an accused is not held to criminal account. This is more so, if the victim suffered substantial injuries and his or her family are affected directly.

It might be apposite to beg the question from the opposite side, ‘why does public policy not dictate that the infliction of bodily harm has a culpa variant?’ There are obviously instances where the level of negligence is so low, as constituting a travesty of justice to render such conduct a crime. However, it is argued that in some instances, the degree of negligence is so high, though short of intent, that public policy should dictate that the accused be visited with criminal accountability.

The anomaly between assaults not having a negligent comparator such as murder could be illustrated by the following two examples:

  • Example one: Accused (A1) intentionally smacks his victim (V1), causing the latter to only suffer superficial physical pain.
  • Example two: Accused (A2), while being grossly negligent, discharges his fire arm, striking and rendering his victim (V2) a quadriplegic and to suffer and irreversible mental disability.

Currently in our law, A1 will be found guilty of the crime of assault. However, A2, irrespective of the fact that V2 has sustained significantly more debilitating and severe injuries than V1, will not be guilty of any crime. V2, notwithstanding the fact that he will be suffering substantially more than V1, will not have the benefit of seeing A2 suffering criminal redress, solely on the basis that A2 lacked intention, though grossly negligent. In our law, culpable homicide and a certain contempt of court are the only two crimes in respect of which the form of culpability required is negligence. In other words assault is a common law crime for which there is no negligence component present. It may be cited as a common law principle, which is reaffirmed by the above. It is just to show how the crime flowing from culpable homicide, where victims survive, and result in any other common law crime is not covered by a negligence crime. CR Snyman Criminal Law Casebook 4ed (Durban: LexisNexis 2008) at 209.

The anomalous results find further practical demonstration with motor vehicle accidents. For this purpose, I refer to the case of S v Humphreys 2015 (1) SA 491 (SCA) see 2013 (July) DR 54. In this case, the accused was transporting scholars in his taxi; through the gross negligent conduct of the accused, a motor vehicle accident occurred where ten of the scholars died and four sustained mild to severe injuries. Due to the fact that assault, as oppose to murder, has no culpa comparator, the accused was found guilty of culpable homicide in relation to the victims who died, and not guilty of any crime in relation to the scholars that survived. This is and will continue to be the case, notwithstanding the degree of an accused’s negligence and the severity of the injuries, which the victims may have suffered. This case most practically demonstrates the lack of legal soundness of not having a culpa variant for assault.

There is a fine line between dolus eventualis and luxuria, both in relation to the test itself and application thereof. The test for the two is clearer in relation to the applicable principles, but the application thereof often blurred the lines. As a reminder (or Criminal Law 201 refresher), with dolus eventualis, the accused subjectively foresees the possibility of his victim being killed in the process, and reconciles himself with such possibility. However, with luxuria, the accused subjectively foresees the possibility of his victim being killed in the process, but dismisses the possibility (also in practice referred to as ‘taking it to the Bar’). It is very onerous on the state, and in most instances, exceptionally difficult to prove that an accused reconciled himself with a particular outcome as opposed to taking it to the Bar. Should the state fail to prove the former in an assault case, the accused will be acquitted.

In the Canadian and American legal systems, as with the South African law, the only negligent crime that involves the infliction of bodily injury is culpable homicide. The English legal system bears close ties with the South African law, both from a historical and jurisprudential point of view. Curiously, the English law makes provision for criminal negligence. In the case of R v Bateman (1925) 28 Cox CC 33, the judge remarked that: ‘In order to establish criminal liability the facts must be such that in the opinion of the jury the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving of punishment’.

I submit that the English law doctrine of criminal negligence should be introduced into our South African law. This is not to say that all negligent conduct should attract criminal liability. However, the test for criminal accountability in respect of negligent conduct is stated very succinctly in the last stated case.

All that is required to determine whether negligent conduct should be visited with criminal redress is to measure the degree of negligence. This should ensure that where the gross negligent conduct of an accused amounting to reckless disregard for the well-being of his fellow subject, attracts criminal sanction. It will also see thereto that the anomalies outlined above are properly addressed, without perpetrating an injustice towards an accused.

I, therefore, submit that there is a lacuna in our law insofar as it pertains to gross negligent conduct having the effect of inflicting serious bodily harm to a victim. The unfairness outlined above, clearly demonstrate that there are instances where the degree of an accused’s negligence is so high and one’s sense of justice is offended, that the severity of the unlawful conduct cries out for criminal sanction. I submit that assault, as with murder, should be adjoined with a culpa-comparator, perhaps called ‘negligent infliction of bodily harm’.

Safia Karriem LLB Postgraduate diploma in Law (UWC) is a magistrate in Cape Town.

This article was first published in De Rebus in 2015 (Sep) DR 40.