Sharpening the subjective element of criminal liability in South African law

Author: Shannon Hoctor

ISSN: 1996-2118
Affiliations: BA LLB LLM (UCT) DJuris (Leiden) PG Dip (Latin) (Wales Trinity Saint David); Professor, Department of Public Law, Faculty of Law, Stellenbosch University
Source: South African Journal of Criminal Justice, Volume 36 Issue 3, p. 462 – 480


South African criminal law holds to a conception of human beings as morally autonomous, which is consistent with the right to dignity. The individual is the foundation of society and law, and must not be treated as an object or instrument. The right to dignity is limited by a guilty verdict, given the punitive and stigmatising consequences which follow. The infringement of the right to dignity which follows conviction is unjustifiable, unless the finding of liability is based on the offender’s control and choice. But a guilty verdict equally resonates with the right to dignity, by treating the offender as a responsible human agent. The basis for a guilty verdict is founded on blameworthiness. It follows that the subjective element of criminal liability is crucial in the just functioning of the assessment of criminal responsibility. Despite an earlier reliance on objective notions, following the pioneering work of JC de Wet, South African law has developed into a system of criminal responsibility based on a subjective, principled approach to liability, the ‘psychological approach’. The justifications for, operation of, and opportunities for further refinement of this vital feature of substantive South African criminal law forms the fabric of this article.