Culpable Homicide Killing negligently Culpable homicide, like murderI is a form of unlawful killing. The crucial difference, however, is that if a person kills intentionally it is murder, whereas if he or she kills negligently it is culpable homicide. Previously, South African case law took the view that a person who kills intentionally, but in mitigating circumstances, is guilty of culpable homicide rather than murder. For example, where a man uses excessive force to defend himself from attack and kills his assailant, this would be culpable homicide. However, later decisions by the Appellate Division strongly support the trend towards excluding a verdict of culpable homicide where intent to kill is proved. The essential element of the crime is negligence, but before any court can make a finding of culpable homicide it must be proved by the prosecution that a reasonable man in the position of the accused would have foreseen that death could result from his actions. The test for negligence is an objective one, as opposed to the test for intention in murder, which is subjective. For example, if it is shown that a man ought to have foreseen the possibility of killing someone when he fired a gun, negligence is present and he is guilty of culpable homicide. If it is shown that he must have foreseen the possibility of death resulting from his actions or that he intended to kill, intention is proved and he is guilty of murder. The question of whether he ought to have foreseen the possible consequences of his actions is decided by reference to the reasonable man the diligens paterfamilias or average prudent family man. The behaviour of the man accused of causing the death is objectively tested against what a reasonable man would do in the same circumstances. Case History - The fatal jump Mr Van den Berg drove his lorry very close to a moving train. To a passenger on the back of the lorry it appeared that there would be a collision, and he attempted to jump clear. He was struck and killed by the train. The court found that Mr Van den Berg had been negligent in driving so close to the train and that his passenger had acted out of a reasonable fear of danger. Mr Van den Berg was found guilty of culpable homicide. (Rex v Van den Berg, 1948) Case History - The fatal slap During an argument in a shop in Windhoek over the repair of a cupboard, the deceased said to the accused: You can go to hell. The accused retaliated by slapping the deceased in the face. The deceased, a very fat man, lost his balance, fell backwards, hit his head on the cement floor, lost consciousness and died. The accused was convicted of culpable homicide and sentenced to a fine of R100 or one month in prison and two years imprisonment suspended for three years. He appealed. In the Appeal Court, Chief Justice Rumpff found that the slap was of such an extraordinary nature that it could not be said with certainty that the deceased could have fallen and hit his head. Accordingly, the accused was guilty of assault only. He was fined R50 or one month in prison. (State v Van As, 1979)
Posted on: Sat, 13 Sep 2014 02:02:31 +0000
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