CRW2601 Long Questions & Answers Exam.

2015 MEMO: CRW2601 PART B Question 1 (a) Y, a 22-year-old woman is obese and very keen to lose weight. She has tried all kinds of diets but in vain. She sees an advertisement placed in a magazine by a hypnotist, X, who claims that his clients lose weight as a result of his hypnosis. Y makes an appointment with X and agrees to hypnosis. While Y is under hypnosis, X has sex with Y. Y lays a charge of rape against X. X relies on the defence of consent. He argues that since Y consented to treatment through hypnosis to lose weight, she implicitly consented to any treatment that would cure her of obesity, including sexual intercourse. (i) Name the requirements for successful reliance on the defence of consent. (6) The requirements for valid consent are the following: Consent must be given voluntarily by a person with certain mental abilities based upon knowledge of the true and material facts given by the complainant her- or himself (ii) Indicate by a “yes” or “no” whether X can succeed with the defence and give reasons for your answer. (2) X cannot succeed with the defence because she did not give consent based upon knowledge of the true and material facts tacitly or expressly. (b) NOTE THE CHOICE THAT YOU HAVE IN THIS QUESTION. For successful reliance on the ground of justification known as private defence, it is required, amongst other things that the defensive action must stand in a reasonable relationship to the attack. (i) The Supreme Court of Appeal in Steyn 2010 1 SACR 411 (SCA) 417 identified certain factors as relevant in determining whether this requirement is complied with. However, the court also stated that the list is not exhaustive and that each case should be determined in the light of its own circumstances. Name four of the factors identified by the court. (4) The factors, of which only four have to be provided , are the following: the relationship between the parties the gender or sex of the parties, their respective physical strengths and ages the location of the incident the nature of the weapon used in the attack the nature, seriousness and perseverance of the attack the nature and severity of any injury likely to be sustained in the attack the nature of the means used to offer defence the nature and extent of harm that could be caused by the defensive act. (ii) Discuss the decision in Steyn 2010 1 SACR 411 (SCA) with reference to the facts; the finding of the court and the reasons for the finding. (6) First the facts have to be set out briefly (see page 75 of SG). Legal question: Was there a reasonable relationship between the defensive act and the attack so that the appellant can rely on private defence? Finding: The defence of private defence was upheld because the court found that the appellant had acted reasonably in the circumstances. Reasons for finding: There must be a reasonable relationship between the attack and the defensive action but strict proportionality is not required – the question is whether the appellant had acted reasonably. The appellant had acted reasonably in view of the particular circumstances. The court could not expect of her to have turned her back on the assailant and to gamble with her own life. The appellant was entitled, in her own house, to leave her bedroom and to go to the kitchen to get something to eat. Her life was in danger and she was entitled to use deadly force in order to protect herself. OR Discuss the ground of justification known as “obedience to orders”. (10) There are three approaches with regard to the question whether obedience to orders is a defence. The first is that the subordinate has a duty of blind obedience to the superior’s order which means that he or she will always be able to rely on such a ground of justification. This approach is not followed in SA law. The second approach is that obedience to an unlawful order can never be viewed as a ground of justification. This approach is also not followed in SA law. The third approach is that one should adopt a middle course between the other two extreme approaches in order to satisfy the demands of morality while at the same time acknowledging the need for discipline in the various armed forces. This middle course was first adopted in the case of Smith where the court held that a soldier is compelled to obey an order unless the order is manifestly unlawful. This third approach was adopted in the Constitution of the Republic of South Africa, 1996 (s199(6)) which now provides that “no member of any security service may obey a manifestly illegal order”. The leading case in this regard is Mostert 2006 (1) SACR 560 (N) (see Case Book 102- 109). The facts of this case were the following: A traffic officer charged with assault relied on the defence. The court held that an act performed by a subordinate on the instruction of a superior is a recognized defence. This defence is not limited to soldiers but may also be raised by traffic officers. The general requirements for the defence are the following: The order must emanate from a person lawfully placed in authority over X. X must have been under a duty to obey the order. The order must not be manifestly unlawful. X must have done no more harm than is necessary to carry out the order. (c) Merely name seven (7) specific instances in which a legal duty to act positively has been recognised by our courts. (7) [25] A legal duty may arise from any of the following instances: a statute the common law an agreement acceptance of responsibility for the control of a dangerous or potentially- dangerous object where a person stands in a protective relationship towards another from a previous positive act if a person is an incumbent of a certain office, or an order of court. Question 2 (a) X is a drug dealer and supplies drugs to Y. Y does not pay him and X decides to take revenge. He approaches Z, who is known as a so-called “contract killer” and makes a deal with him (Z) to kill Y. The exact execution of the killing is not discussed. Z agrees, and fires a shot at Y while he (Y) is driving his car. Y, who is shot in the neck, loses control over the car and collides into an oncoming car, killing the driver of that car, A, instantly. Y is taken to hospital by ambulance and treated for his injury. He is dismissed from hospital after two months, having recovered from the injury. However, he is paralysed and unable to return to work. His doctor tells him (Y) that there is a possibility that he may develop bed sores if he does not change his position every four hours. He is also advised to visit the doctor immediately if he should develop bed sores. Y does not listen to his doctor and develops bed sores from which he eventually dies. Both X and Z are charged with murder in respect of A and Y. (i) Indicate whether both X and Z can be classified as direct perpetrators in relation to Y’s death. Give a reason for your answer. (2) No, Z is a direct perpetrator and X is an indirect perpetrator. The reason is that a direct perpetrator is somebody who commits the crime with his or her own hands whereas an indirect perpetrator commits a crime through the instrumentality of someone else. (ii) Can the conduct of both X and Z be regarded as the cause of Y’s death? Discuss with reference to the tests for factual and legal causation. Refer also to relevant case law. (8) X and Z’s acts are both the factual causes of Y’s death. The acts of both are each conditiones sine qua non of the result. If X did not hire Z to kill Y, Y would not have died; and if Z did not fire a shot at Y he would also not have died. But the state must also prove legal causation. Legal causation is determined by considering policy considerations: would it be fair and reasonable to regard both X’s and Z’s acts as the cause of Y’s death? In order to determine this, the courts make use of certain tests: The individualisation test which focuses on the most operative or proximate cause. In the set of facts Y’s act of not moving sufficiently in order to prevent bedsores was the most proximate cause of his death but the test was rejected in Daniels as an exclusive criterion to determine legal causation. So, other tests should also be considered. The test of adequate causation. In terms of this test the question is whether according to human experience the acts of both X and Z, in the normal course of events, have the tendency to bring about the death of another person. The answer to this question is yes. The acts of both X and Z comply with this test – judging by human experience hiring somebody to kill another person, and firing a shot at another person, does have the tendency in the normal course of events to lead to the death of another person.