Provocation as a Defence

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The question often arises whether or not provocation can justify a criminal act such as murder or assault. Will the Court accept that X was so harshly provoked by Y, that Y’s murder is excused? This defence is often used when a person assaults or murders out of anger, emotional distress, fear or complete shock. The accused may say that the victim actively and willingly instigated and induced violence and aggression with his words and/or acts and that same ultimately caused or lead to the criminal act.

This defence is no doubt one of the most contentious defences in criminal law around the world. In South Africa, this defence has a turbulent past as can be seen from various controversial Judgements on this subject. On the one had it can be said that there should be room for human infirmity, and on the other hand it would be unjust to allow the legal system to “excuse” violent crimes fundamentally caused by anger. Some Courts have been cautions to not create a doctrine of allowing persons to take the law into their own hands and others recognised the defence; some loosely and others more strictly.

When considering a defence of provocation, a strict approach would maintain that the law must treat everybody the same. The law should not differentiate between a person who is able to control his/her anger and a person who is not. If the law offers a complete defence to undisciplined people; disciplined people on the other hand would be measured against a different criterion. Such distinction would not be fair.

However when considering the principles of criminal liability and intent the accused may argue that due to his sudden emotional distress, he cannot be accountable or alternatively, that he did not have intent to assault or murder. As he was not criminally liable he can therefore not be guilty. This may lead to provocation being considered as a complete defence.  This approach has been described as a more lenient approach to the defence and basically means that when considering the general principles of criminal liability, the accused did not act unlawfully.

Before the Camper Appeal Court case in 1987 the Court applied a subjective test to ask itself if the accused truly lost his ability to control himself and wilfully murdered the accused. If so, an objective test was applied to determine whether the certain standards have been complied with, and if so, the accused would be guilty of culpable homicide and not murder. These standards required that for the provocation to be wrongful, the accused acted due to the provocation to which  the reasonable person would have similarly reacted; that the accused acted immediately after the provocation and that the accused’s actions were in line with the provocation.

After the Camper case, until 2002, the Court approached this defence more leniently as described above. As disused above, this meant that a person who lost his temper easily and who could not apply self-control was measured against a more relaxed standard of people who think before they act. This meant that extreme provocation could lead to a total acquittal. This was argued in cases where the provocation caused a person to lose control out of complete anger. The state of mind of the accused was of importance when claiming this defence.

In the Eadie matter held in 2002, the Court delivered a leading Judgement. In this matter, the Court dealt with the defence of non-pathological incapacity, which is nothing else but provocation. The Court’s Judgement in the Eadie matter resulted in the defence practically being diminished. Some had better hopes for this Judgement and stated that it caused more uncertainty with regards to the defence. The Court held that, unless the person’s actions were as a result of automatism, the defence could not succeed. Automatism (or the absence of a voluntary act) is extremely difficult to prove. This Judgement caused the South African criminal law to abandon the lenient approach.

Although the lenient approach can be frowned upon, the defence of provocation does require a place in our criminal law. The Eadie Judgment may be interpreted to include that the law has moved back towards the principles used before the Camper case. The Judgement cautioned all Courts not to accept the accused’s version of the “lost self-control” too easily and encouraged all Court’s to ask themselves what the reasonable person would have done in the same circumstances. This moved the focus of this defence to an objective test; however, the test of capacity remains subjective and the Judge only criticised its application and not its existence. The Court in this matter expressed its discontent at how easily persons were acquitted as a result of provocation.

Michelle Soutter

Practising Attorney

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