QUESTION 1: UNLAWFUL CONDUCT

Automatism occurs when the accused actions are subject to the control of the accused
mind/ conscious will. This means that the accused will be in a state where they are acting
like a robot.
The Court uses the following words to describe a person acting in an automatic sate:
 The person will act like a robot/ mechanically;
 The actions will be very basic in nature;
 The person will act as if they have no free will of their own; and
 They will act mechanically with no intention.
The four factors of automatism that the court will consider when determining if the accused
was acting In a state of automatism, these factors include the following:
1. Amnesia: does the accused remember the incident;
2. Trigger mechanism: was there an emotionally charged action that set the accused off
before the conduct and how long after the trigger mechanism did the accused take
to act. the trigger mechanism and the act must be closely related in time, the faster
the accused responds to the trigger the more likely that she is acting in a state of
automatism.
3. Goal directed behavior was there goal directed behavior;
4. Motive the court will consider if the accused had any motive and they will also look
at the surrounding circumstances of the act.

There are 2 types of automatism:

 Sane automatism: this type is caused by external factors example of this include
drugs, alcohol, sleep walking, low blood sugar and epilepsy and can be used as a
complete defence to the accused conduct.
 Insane automatism: this is caused by pathological disturbances meaning that
something in the accused mind is not right. With this type of automatism, the
accused will act like a robot indicating a mental illness for example schizophrenia and
 if the accused is found guilty of insane automatism, she will receive a special verdict,
committal to a mental institution.

In the case of s v Mhlinza, the court held that if the accused declares to be mentality ill at
the time of the incident, the mental illness does not need to be permanent it may also be
temporary, it also held that there is no definite definition of mental illness the court will
know when they see it and the cause of the mental illness is irrelevant just as long as it is the
disease of the mind.

When it comes to determining evidential burden, in the case of s v Cunningham the court
said that the general rule in criminal law for acting unlawful is that is a person commits an
unlawful act, they will be viewed as to be committing the act consciously and voluntarily. To
prove that the accused is acting unlawfully, one will need to show evidentiary framework
and the framework needs to be cogent and compelling. The courts will use expert testimony
such as psychiatrist and psychologist and it will also look at the facts surrounding the matter.

Taking the rules above and the given set of facts in the case study, the accused, Penny kept
on saying she does not remember what happened but she could remember all the errands
she ran on that day leading to the incident, she also remembered of many times she shot
each child which clearly shows that she does not have amnesia which is one of the factors
for automatism.

Penny had a trigger mechanism in the sense that she found out that her husband was having
an affair and that the husband would take the children and be with this other woman.

The goal orientated behavior is clear because she because she drove through all the toll
gates with so much human interaction but still proceeded to drive to a secluded place.

The motive behind her actions could have been the intension to hurt her husband and her
no losing her children and family.
From the given case study once can tell that penny is not acting in a state of automatism as
she is not acting like a robot but is acting not mechanically and with full intention to do what
she did.

QUESTION 2: CAUSATION

Causation is conduct that brings about a particular consequence. When determining

Factual causation is used to determine the first cause of harm, and to do that the court uses
the but for test meaning that but if it was not for the accused inflicting the harm would the
victim be in the same state.

From determining the factual cause, the courts will then move to finding out the legal cause.
Legal causation is determined using 2 tests:
 The adequate cause test meaning that in the ordinary cause of human even would
the same results have occurred.
 Novus Actus test meaning that are there abnormal or unforeseeable events that
according to human experience breaks the chain of events from the original actions.
The event that breaks the chain can occur in the following ways:
o By force of nature;
o An act of the victims themselves; and
o An act of the third party.

In the case if s v Thembani, the victim was shot by his boyfriend, the accused. The bullet
penetrated her body and caused severe damage to her ribs, lungs, diaphragm, and
abdomen. The victim was rust to the hospital where she was treated by ended up dying 14
days later.
In this case the accused argues that although he had the intention to kill the victim, he,
however, is not the one that killed her, he argued that the doctors were very negligent in
treating the victim which is what killed her.
An investigation was done, and it was revealed that the wound that the accused inflicted on
the victim would have been fatal without treatment and others said that the wound was
fatal to begin with and court found that the victim needed to have a laparotomy done and if
it was done there would have been a 95% chance of survival for the victim.

According to the court the accused needed up being held liable as the factual and legal
cause of harm to the accused. It held that had it not been for the accused shooting the
victim the victim would have not been in that sort of state and that the doctors had
stabilized the victim when she got to the hospital and was given the basic care, she needed
which was enough for the court’s to not hold the doctors liable.

It further held that the accused had inflicted an intrinsic and dangerous wound on the
victim, and she was bound to die without medical intervention regardless of if the doctors
were negligent and the accused would still be liable for the victim’s death.

It also held that it could not hold the doctors liable because of policy consideration and due
to the financial and resource constrains, it did not want to diminish the moral culpability
from the original wrong doer.

In the case study given, Eugene is the factual cause of Thandi’s harm because had it not
been for him shooting her and causing an intrinsic and dangerous wound on to Thandi, she
would still be alive.

And just like in the above-mentioned case, the doctors had managed to stabilize as well do
the necessary medical intervention needed to keep her alive and that is enough for the court
to not consider the doctors actions an abnormal or unforeseeable even that according to
human experience breaks the chain of event from the original action of Eugene shooting
Thandi. Eugene is the factual and legal cause of Thandi’s death because just like in the case
of S v William, Eugene severely wounded Thandi to a point where she was also being kept
alive by artificial means.

JUST like in the case of s v Thembani the court could not hold the doctors liable because of
policy consideration and due to the financial and resource constrains, it did not want to
diminish the moral culpability from the original wrong doer being eugene.