Abstract

The issue of whether provocation (or emotional stress) should provide a defence in criminal law, and to what extent, has been dealt with in different ways in South African law. Initially, following the commonlaw sources, a provoked offender was not entitled to a defence on the basis of the provocation. At best, there could be mitigation of sentence in these circumstances. This strict position was somewhat ameliorated by the adoption of the English notion of specific (and basic) intent, whereby a provoked offender could be convicted of a lesser offence on the basis of the provocation serving to reduce the specific intent required for a more serious crime (notably murder) to a lesser crime of basic intent (such as culpable homicide). This pragmatic approach was, however, contrary to principle and the progressive adoption of the psychological approach to criminal liability, which foregrounds the subjective capacity and fault of the individual in determining blameworthiness, inevitably resulted in the logical result that provocation (or emotional stress) could found a complete defence to liability. This development took place with the concomitant acceptance of toerekeningsvatbaarheid (or criminal capacity) as an essential element of criminal responsibility. Under the influence of policy considerations, the Supreme Court of Appeal in S v Eadie has sought to resile from this commitment to individual blameworthiness. This contribution traces the development of the defence of nonpathological incapacity based on provocation (or emotional stress) prior to the Eadie decision.