CHAPTER II
ELEMENTS OF CRIMINAL LIABILITY
PART III
STATES OF MIND
12 Meaning of subjective state of mind
For the purposes of this Part, a subjective test for a state of mind is a test whereby a court decides whether or not the person concerned actually possessed that state of mind at the relevant time, taking into account all relevant factors that may have influenced that person’s state of mind.
13 Intention
(1) Where intention is an element of any crime, the test is subjective and is whether or not the person whose conduct is in issue intended to engage in the conduct or produce the consequence he or she did.
(2) Except as may be expressly provided in this Code or in the enactment concerned, the motive or underlying reason for a person’s doing or omitting to do any thing, or forming any intention, is immaterial to that person’s criminal liability in terms of this Code or any other enactment.
14 Knowledge
Where knowledge is an element of any crime, the test is subjective and is whether or not the person whose conduct is in issue had knowledge of the relevant fact or circumstance.
15 Realisation of real risk or possibility
(1) Where realisation of a real risk or possibility is an element of any crime, the test is subjective and consists of the following two components—
(a) a component of awareness, that is, whether or not the person whose conduct is in issue realised that there was a risk or possibility, other than a remote risk or possibility, that—
(i) his or her conduct might give rise to the relevant consequence; or
(ii) the relevant fact or circumstance existed when he or she engaged in the conduct;
and
(b) a component of recklessness, that is, whether, despite realising the risk or possibility referred to in paragraph (a), the person whose conduct is in issue continued to engage in that conduct.
(2) If a crime of which the realisation of a real risk or possibility is an element is so defined in this Code or any other enactment that—
(a) the words describing the component of awareness are omitted, the component of awareness shall be implicit in the word “recklessly” or any derivatives of that word; or
(b) the words describing the component of recklessness are omitted, the component of recklessness shall be implicit in the expression “realise a real risk or possibility” or any derivatives of that expression.
(3) Where, in a prosecution of a crime of which the realisation of a real risk or possibility is an element, the component of awareness is proved, the component of recklessness shall be inferred from the fact that—
(a) the relevant consequence actually ensued from the conduct of the accused; or
(b) the relevant fact or circumstance actually existed when the accused engaged in the conduct; as the case may be.
(4) For the avoidance of doubt it is declared that the test for realisation of a real risk or possibility supersedes the common-law test for constructive or legal intention and its components of foresight of a possibility and recklessness wherever that test was formerly applicable.
16 Negligence
(1) Where negligence is an element of any crime—
(a) constituted by the performance of an act, the test is objective and consists of the inquiry whether the accused person’s performance of that act was blameworthy in that—
(i) a reasonable person in the same circumstances as the accused would not have performed that act; or
(ii) the accused failed to perform the act with the care and skill with which a reasonable person in the same circumstances would have performed that act;
whichever inquiry is appropriate to the crime in question; or
(b) constituted by the omission to perform an act, the test is objective and consists of the inquiry whether the accused person’s omission to perform that act was blameworthy in that a reasonable person in the same circumstances would not have omitted to perform the act; or
(c) constituted wholly or partly by a consequence resulting from the conduct of an accused person, or by the existence or absence of any circumstance in which such conduct occurred, the test is objective and falls into two parts—
(i) whether or not the accused person failed to realise that his or her conduct might produce the relevant consequence or that the relevant circumstance might exist or be absent; and
(ii) if the accused person did fail as provided in subparagraph (i), whether or not the person’s failure was blameworthy in that a reasonable person in the same circumstances—
A. would have realised that the relevant consequence might be produced and would have guarded against it; or
B. would have realised that the relevant fact or circumstance might exist or be absent and would have taken steps to ascertain whether or not it did exist;
as the case may be.
[Paragraph amended by section 31 of Act 9 of 2006.]
(2) For the avoidance of doubt it is declared that paragraph (c) of subsection (1) shall apply to the determination of the criminal liability of any person accused of culpable homicide, negligently causing serious bodily harm or negligently causing serious damage to property.
17 References or absence of references to states of mind in statutory crimes
(1) In this section—
“mental element”, in relation to a crime, means any intention, knowledge, realisation of a real risk or possibility, or negligence with which that crime is committed;
“strict liability crime” means a crime for the commission of which no mental element is required to be proved in order to establish liability for that crime.
(2) Where in any enactment creating a crime—
(a) the word “corruptly”, “deliberately”, “dishonestly”, “fraudulently”, “indecently”, “intend”, “intentionally”, “maliciously”, “mischievously”, “purposely”, “wantonly” or “wilfully”, or phrase “with intent to” or “for the purpose of” or any related or derivative expression is used with respect to the commission by any person of the crime, section thirteen or (subject to subsection (3) of this section) section fifteen shall apply to the determination of the state of mind of the person accused of committing that crime;
(b) the word “knowing”, “knowingly” or any related or derivative expression is used with respect to the commission by any person of the crime, section fourteen or (subject to subsection (3) of this section) section fifteen shall apply to the determination of the state of mind of the person accused of committing it;
(c) the word “recklessly” or any related or derivative expression is used with respect to the commission by any person of the crime, section fifteen shall apply to the determination of the state of mind of the person accused of committing it;
(d) the word “negligently”, “carelessly”, “unskilfully” or any related or derivative expression is used with respect to the commission by any person of the crime, section sixteen shall apply to the determination of the state of mind of the person accused of committing it.
(3) The test for realisation of a real risk or possibility contained in section fifteen shall only apply to a crime referred to in paragraph (a) or (b) of subsection (2)—
(a) if proof of intention as required by section thirteen or proof of knowledge as required by section fourteen is absent; and
(b) if the crime is of a kind described in paragraph (a) or (b) of subsection (4).
(4) The kinds of crime to which the test for realisation of a real risk or possibility contained in section fifteen can be applied are the following—
(a) a crime that is constituted not only by the conduct of the person accused of committing it but also by a consequence or potential consequence resulting from the conduct, in which event the test is applicable for the purpose of determining whether the accused realised that there was a real risk or possibility that the consequence might ensue; or
(b) a crime that is constituted not only by the conduct of the person accused of committing it but also by the existence or absence of any circumstance in which such conduct occurred, in which event the test is applicable for the purpose of determining whether the accused realised that there was a real risk or possibility that the circumstance existed or was absent.
(5) Where in any enactment creating a crime no expression specifying a state of mind is used with respect to the commission of that crime, section thirteen or fourteen, as may be appropriate to the crime in question, and (subject to subsection (3) of this section) section fifteen shall apply to the determination of the state of mind of the person accused of that crime, unless
(a) the enactment expressly provides that the crime is a strict liability crime; or
(b) the legislature impliedly intended it to be a strict liability crime because
(i) the requirement of proving a mental element would render the detection or prosecution of the crime impossible or practically impossible; or
(ii) the object of the enactment would be defeated if proof of a mental element is required to establish liability for the crime:
Provided that, notwithstanding subparagraph (i) or (ii), a court shall not hold that the legislature impliedly intended a crime to be a strict liability crime if the penalty for it is mandatory imprisonment or imprisonment without the option of a fine.
EDIT.