WL2WL/TJM 010382

NOTES ON THE LAW RELATING TO SUICIDE

1. The t e x t b o o k r e f e r e n c e s a r e t o t h e S outh A f r i c a n C r i m i n a l Law and P r o c e d u r e by P M A Hunt - Volume 2 .

2 . At p age 334:

"There h a v e b e e n c a s e s i n Am erica i n w h ic h Y, h a v i n g b e e n i n j u r e d by X, has com m it ted s u i c i d e . I t i s s u b m i t t e d t h a t p r o v i d e d X 's c o n d u c t had n o t m e n t a l l y i n c a p a c i t a t e d Y a t t h e t im e o f s u i c i d e , Y ' s a c t must b e r e g a r d e d a s a n o v u s a c t u s , j u s t as w ou ld b e r e g a r d e d t h e c o n d u c t o f an in d e p e n d e n t* t h i r d p e r s o n who s h o t Y th r o u g h t h e h e a r t a f t e r Y had b een i n j u r e d by X."

The q u e s t i o n o f n ovu s a c t u s i s t h e n d i s c u s s e d i n R v P e v e r e t t 1940 AD 2 1 3 . Where Y s a t f r e e l y and p a s s i v e l y i n a c a r i n t o w h ic h X i n t r o d u c e d e x h a u s t f u m e s , i t was h e l d t h a t Y ' s p a s s i v i t y d i d n o t c o n s t i t u t e a n o v u s a c t u s . A l s o in R v Gordon 1 9 6 2 ( 4 ) SA 7 2 7 , where Y a t e s l e e p i n g p i l l s p r o v i d e d by X, i t was h e l d t h a t Y ' s v o l u n t a r y c o n d u c t b ro k e t h e c a u s a l c h a i n .

"The l i n k b e tw e e n P e v e r e t t and Gordon may be f i n e , b u t i t seem s s u f f i c i e n t l y s i g n i f i c a n t t o j u s t i f y t h e d i s t i n c t i o n . "

S ee g e n e r a l l y t h e d i s c u s s i o n a t p a g e s 334 and 33 5 . See a l s o page 346 o f t h e book and p a r t i c u l a r l y t h e q u o t a t i o n from t h e R h o d e s ia n c a s e o f R v C h e n j e r e .

W L/TJK0 1 0 3 8 2

S e e t h e c a s e o f R v N bakw e 1 9 5 6 ( 2 ) SA 557 a t 559

w h e r e t h e H ig h C o u r t o f S o u t h e r n R h o d e s ia f o u n d :

"T h e a c c u s e d d i d n o t a c t u a l l y k i l l t h e d e c e a s e d h i m s e l f , b u t i f h i s a c t s c o u l d b e c o n s t r u e d a s a n a t t e m p t t o d o s o , h e c o u l d l e g a l l y b e c o n v i c t e d o f a t t e m p t e d m u r d e r , s i n c e o n a n i n d i c t m e n t f o r m u r d e r a v e r d i c to f a t t e m p t e d m u r d e r i s a c o m p e t e n t o n e .................I n my v ie w t h e a c t s o f t h e a c c u s e d o r t h i s o c c a s i o n d o n o t g o f a r e n o u g h t o c o n s t i t u t e a n a t t e m p t . T h e y g o n o f u r t h e r t h a n w h a t a r e co m m o n ly c a l l e d a c t s o f p r e p a r a t i o n . T h e a c c u s e d p r o v i d e d a m e a n s f o r c a u s i n g d e a t h a n d h e p e r s u a d e d t h e woman t o k i l l h e r s e l f , b u t t h e a c t u a l a c t w h ic h c a u s e d t h e d e a t h o f t h e w om an w a s t h e a c t o f t h e w om an h e r s e l f . T h e r e w a s , t o u s e a common e x p r e s s i o n , a n o v u s a c t u s i n t e r v e n i e n s b e tw e e n t h e a c t i o n o f t h e a c c u s e d a n d t h e d e a t h o f t h e d e c e a s e d w h ic h i n my v ie w b r o k e t h e c h a i n o f c a u s a t i o n b e tw e e n t h e a c t o f t h e a c c u s e d a n d t h e d e a t h o f t h e d e c e a s e d . "

3r

same thine) abnormal,152 and itself hastens death.153(iii) On the basis of R. v. Loubscr and S. v. Taylor (but contrary to Rooi and

Mubila). the rule may be the same even where the wound is ‘intrinsically danserous’,154 but not if the wound is so dangerous that it is ‘mortal : likely to cause death even if available medical treatment is obtained.155 The following example makes it clear that this should be the case: X inflicts a dangerous wound on Y who. though an educated man living in a civilized community, refuses (for reliuious or malicious reasons) to undergo a blood transfusion which would certainly save him, and dies. Y’s refusal ought to be treated as a novus actus just as much as if he were to commit suicide.156 If abnormality is a dominant ’ criterion, it cannot necessarily be predicated upon a non-dangerous wound. The conjunction of circumstances may be so startling, even in the case of a dangerous wound, that that conjunction should be labelled ‘abnormal’.

(2) Suicide and ‘suicide pacts'. There have been cases in America157 in which Y. having been injured by X, has committed suicide. It is submitted that provided X’s conduct had not mentally incapacitated Y at the time of suicide,158 Y’s act < must be regarded as a novus actus, just as would be regarded the conduct 01 an independent third person who shot Y through the heart after \ had beeninjured by X.159 . . . 1

The South African cases have concerned the situation in which X and Y make , a ‘suicide pact’ or in which without such a pact X, without directly injuring ' i , encourages the latter to commit suicide. It has been held that suicide—and. ( consequently, incitement to commit suicide—is not a crime.140 Whether X can be convicted of murdering Y (the person who committed suicide) depends on whether Y’s own actions can be construed as a novus actus which breaks the chain started by X’s activities. In R. v. Peverett,161 where Y sat freely and passively in a car into which X introduced exhaust fumes, it was held that Y s passivity did not constitute a novus actus. Likewise it was held in S. v. Robinson16- that it is murder for X to shoot Y at the latter’s request. But in R. v. Nbakwa,lc:j where Y voluntarily hanged herself with materials provided and prepared by X, R. v. Gordon164 where Y ate sleeping-pills provided by X, and S. v. Grotjohn,11 where Y shot herself with a gun handed to her by X who knew of her purpose, it was held that Y’s voluntary conduct broke the causal chain. The line between Peverett and Gordon may be fine, but it seems sufficiently significant to justify

155 A liter if the abnormal circumstances were foreseen or planned by X; see above, p. 330.in ju s . v. Taylor, Y ’s negligent departure from hospital apparently had no causal potency;

also the wound was a ‘mortal’ one. . T _ .1M Cf. Gordon, p. 114; Glanville Williams in (1957) Crim. L.R. 514.156 As was apparently the case in S. v. Taylor (supra).*“ Cf. S. v. Angelina (1913) 73 W.Va. 146; Hart and Honore, pp. 222-3; cp. People v. Lewis

^ ls’̂ The cases o f Angelina and Lewis (supra), in which opposite conclusions were reached.»“ See Hart and Honore, pp. 294, 302. This may be the explanation of S. v - StePhf n̂ ‘

( 1932) 205 Ind. 141 (on which see Hart and Honore, p. 294) m which a girl who had been brutally raped and injured took poison. The rapist was held to have caused her death.

ls* Cf Hall p 266• Hart and Honore, pp. 222-3, 302. Contrast De Wet and Swanepoel, p. 59.R \ Nbakwa i 956 (2) S.A. 557 (S R.); 5. v. Gordon, 1962 (4) S.A. I l l (N); Ex port,

Die Minister van Justisie: In re S. v. Grotjohn, 1970 (2) S.A. 355 (A.D.) at 363D, 366. The point is dealt with below, pp. 349-52. /« n ' i

»> 1940 A.D. 213. >•163 io <6 (21 S A 557 (S R ) 1962 (4) S.A. 727 (N).1,5 Uiwported^ but see (1969) 32 T.H.R.-H.R. 187 and (1969) 86 S.A.L.J. 148, where the

facts are set out and the decision attacked.

m u r d e r

the distinction.166However, the Appellate Division166"1 has now in effect overruled S. y. Gordon

and S. v. Grotjohn in answering questions of law put to it by the Minister of Justice. It must therefore now be accepted that if X incites Y to commit suicide or provides Y with the facilities foreseeing that Y will use them, and Y does commit suicide, X is guilty of murder. Y’s positive, voluntary act is not a novus actus because X foresaw or planned it.

(3) Endeavours to escapc. If Y is killed trying to escape from X Y’s conduct iannot be regarded as voluntary and the fatal accident will not be considered a novus actus167 Aliter, however, if, allowing for the agony of the moment, Y’s conduct is sufficiently ‘unreasonable’. This was the conclusion in R. v. McEnery,168 in which X, a drunken and unarmed European soldier, entered a moving railway coach at night and began assaulting the Bantu occupants with the result that one of them, Y, jumped out and was killed.169

(B) Subsequent conduct on the part o f XObviously if X performs a subsequent innocent or even negligent act which is

completely independent (in conception and execution) of his original conduct, and which causes death, it must be regarded as a novus actus. A repentant X may, for instance, cause Y’s death when, while subsequently visiting him in hospital, he infects him with a disease170 or when, w’hile driving him to a doctor, his car is involved in a collision.171 In both cases X’s original murder attempt is a sine qua non of Y’s death at that time, but that is not enough.

Problems have arisen under this heading in five South African cases, in each of which the decisive fatal act was committed by X in order to avoid detection for what he erroneously thought to be a completed murder. In R. v. Shorty,172 X violently assaulted Y with a large stone. Mistakenly believing Y to be dead, X put him down a sewer, where he drowned. The Southern Rhodesian Court held that the immersion in the sewer was ‘a new, intervening act, and it was not immediately connected with the assault; and it was this immersion in the sewer which was the cause of death’.173 Consequently X’s first act had not caused death while his second had been committed without intent to kill (as X then thought he was dealing with a corpse), and X could be convicted only of attempted

»« See below, p. 351. Cf. Hart and Honore, pp. 294- 5 . B ut see A. V. Lansdown in (1963) 80 S.A.L.J. 332, who criticizes Peverett, S. A. Strauss in (1963) 26 T.H.R.-H.R. 57, who criticizes Nbakwa and Gordon, and J. H. Hugo in (1969) 86 S.A.L.J. 148, and N . J. van der Merwe in (1969) 32 T.H.R.-H.R. 187, who criticize Grotjohn. . .

>«» £ x parte Die Minister van Justisie: In re S. v. Grotjohn, 1970 (2) S.A. 355 (A.D.) at364-5. See further, below, pp. 351-351A. „ , , . . w v

1,7 R v. Gonya, 1919 E.D.L. 62; R. v. Sikona, 1937 S.R. 54; R. v. Mjobe, 1938 E.D.L. 303, R. v. John, 1969 (2) S-A. 560 (R.A.D.). A number of similar foreign cases are cited by Hart and

H°™ J943PS.r!6158, 1944 (1) P.H., H. 11 (S.R.). Contrast R. v. Van der Berg, 1948 (2) S.A. 836 (T'j jit 838

i«» There are a number o f culpable homicide cases—particularly driving cases—in which the courts have had to consider whether Y ’s negligence is a novus actus. See, further, chap. la ,

PPi™*sirith and Hogan, p. 189. Cf. Bush v. Commonwealth (1880) 78 Ky. 268, where Y con­tracted the disease in hospital, but not from X. Whether X or someone else is the source of thedisease cannot make any difference. . . . __... .

1,1 X ’s position is analogous to that o f an ambulance driver who is involved in a collision (through his own or someone else’s negligence or both) which must surely be treated as a novus actus', cf. Gordon, p. 111.

m 1950 S.R. 280. At 281.

The classic example is of the drowning man whom X can rescue but whom tin- law does not require him to save.

However, in certain circumstances X is sufficiently connected with the events for the law to abandon its attitude of laissc: faire and impose a duty on him to act in order to protect Y from bodily harm. It is impossible precisely to define these circumstances, but the following are some of the main categories (which to some extent overlap):

(1) Protective relationship. Briggs F.J. said (obiter) in R. v. Chenjere:26T‘To cause death by inaction may be criminal if there is a positive duty to preserve the life of the person in question. The duty arises where the potential victim is helpless through infancy, senility or illness and the potential killer stands, either naturally or through a deliberate acceptance of responsibility, in a protective relationship to the victim. Tnere was no natural relationship between the appellant and the deceased, but I think that, bv taking the mother and a child of that age [2-3] from the protection of the natural guardian husband and father, with the apparent intention of forming a new “family” relationship- of a permanent, or at least prolonged nature, the appellant had deliberately assumed a protective relationship towards both of them.’

Likewise, section 130 of the Transkeian Penal Code makes X responsible for the death of Y if X has ‘charge’ of Y, ‘by reason of detention, age, sickness, insanity, or any other reason’, and X omits to supply Y with ‘the necessities of life’ with the result that Y dies.

(2) Statute. Statutes may create positive duties to act in order to protect the bodily security of other persons.268 Sections 130-3 of the Transkeian Penal Code fall into this category. Social legislation, such as that regulating conditions in factories, also provides examples, though it is perhaps improbable that breach of a duty, for instance to fence dangerous machinery, would ever be proved to accompany intent to kill.

(3) Public and quasi-public office. The incumbent may be under a duty to care for someone in his charge;269 for instance, a gaoler who, with intent to kill, starved a prisoner to death, would obviously be guilty of murder.270

(4) Control o f dangerous property. If X has control of a dangerous thing or animal which may cause harm unless precautions are taken,271 X is under a duty to take those precautions. It is conceivable, for instance, that X, owning a very vicious dog, might deliberately leave Y to a fatal encounter with it.272

(5) Contract or other undertaking. If X undertakes, gratuitously or otherwise, expressly or impliedly, ‘to do any act, the omission to do which may be dangerous to life’,273 he will be under a duty to do that act. For instance, X may undertake to control apparatus which determines the water-level or the gases present in a mine. It is murder if he intentionally breaches this duty foreseeing that—as in

"7 1960 (1) S A . 473 (F.C.) at 482. Cf. S. V. Van As, 1967 (4) S.A. 594 (AJD.). Silva's Fishing Corporation (P ly .) Ltd. v. Maweza, 1957 (2) S. A. 256 (A.D.), falls into this category.

See R. v. De Bruyn, 1953 (4) S.A. 206 (S.W.A.) at 211.*•» S. v. De Waal, 1966 (2) P.H., H. 362 (G.W.); S. v. Russell, 1967 (3) S.A. 739 (N) at

741-3; S. v. Van As, 1967 (4) S.A. 594 (A.D.).170 D .9.2.29.7; sec. 130 of the Transkeian Penal Code; M tati v. Minister o f Justice, 1958 (1)

S.A. 221 (A.D.).171 Cf. D .9.2.27.9; 44.1; sec. 132 of Transkei Code; R. v. Puttock, 1968 (1) P.H., H. 78

(R.AJ3.); S-A.R. v. Estate Saunders, 1931 A .D . 276.172 Cf. the culpable homicide cases of: R. v. Eustace (2), 1948 (3) S.A. 859 (T); and S. v.

Fernandez, 1966 (2) S.A. 259 (A.D.) (on which see D . R. Stuart in (1966) 83 S .A X J . 422; J. H. van Rooyen in (1966) 29 T.H.R.-H.R. 258).

1,3 Sec. 133 of the Transkeian Penal Code.

m u r d e rfirt happens—his omission may lead to the death of persons within the mine. i ikewise a doctor would be responsible for causing Y’s death if he had under­taken to operate on or otherwise treat Y, and because of his failure to perform h:, duty Y received no treatment and consequently died.2'1'

(6) Prior conduct. Where ‘bv some positive act [X] has created a potentially Cancerous state of things which would otherwise not have existed ,- ,c X has a dutv to guard against the foreseeable danger. If X lights a bonfire next door to a munitions factory he obviously bears a duty to prevent it spreading.-" One mi^ht also say that he is in control of a dangerous thing or situation, but there mav be other examples (such, perhaps, as the case of a person who creates a hazard on a public path) which do not fit comfortably into any of the above categories and which are best placed under this rather general rubric.

(b) Infanticide278It is clear in South African law2™ (Natal excepted) that infanticide is merely a

form of murder. It is not a substantive crime and is usually charged under the name ‘murder’. In fact the only point worthy of note regarding this species ot murder is that in terms of section 330 of the Criminal Procedure Act a woman who is convicted of the murder of her ‘newly born’ child need not even in the absence of extenuating circumstances—be sentenced to death. In R .v. Belliana Mackinini, 280 a ten-day-old baby was considered ‘newly born’, but the opposite conclusion was reached in R. v. Adams,™1 where the child was three to fourweeks old *

The position in Natal is governed by section 9 of Act No. 10 of 1910 (N),which provides that

T he unlawful killing of a child within one week after its birth shall be a crime v n d a lb ti name of infanticide. The crime o f infanticide shall be punishable by imprisonment with or without hard labour for a term not exceeding five years, but nothing in this sectioni sha be deemed to repeal or affect the law relating to the murder of a child: Provided that a conviction or acquittal upon a charge of infanticide shall bar any subsequent charge of

: murder or culpable homicide of the same child.

This provision is considerably more lenient than comparable foreign statutes*® f which all seem to restrict infanticide to the child’s mentally or emotionally I disturbed mother, but of course the prosecutor does have a discretion to indict

for murder. It is submitted that mens rea is an element of the offence.

Pf- (c) Exposing an InfantA parent who, with intent to kill, abandons an infant can be charged with

Z ' murder if death results, or with attempted murder, if it does not. Negligent

i £ C f lr is t ' & T » » k d ,n M Code.I mssis&s .n d « « ss* Sanctity o f Life dd 25-42, who also deals with the English Infanticide Act o f 1938 (on wnicn* 2 T 5E ? Smith md Hogan, pp. 240-1). De We, and Swanepoel, pp. 209-10, mentions vanous Sc Continental enactments. All infanticide statutes seem to restrict the crime to the condurt of an f “ y o r mentally-disturbed mother. If a third person kills a newly-born child, the crime

§ - ‘S - The'Roman-Dutch writers did not clearly i n f f f S S i S t a

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