Die nie-patologiese ontoerekeningsvatbaarheidsverweer van outomatisme in die Suid-Afrikaanse strafreg

Abstract

A controlled, voluntary human act is the basic element of criminal liability. If the act is not subject to the will, it is involuntary and excludes the act and therefore criminal liability. This defence is known as automatism. This condition of involuntariness can arise as a result of insanity or due to reasons other than insanity. If the accused were insane at the time of committing the offence and he successfully raises an automatism defence, he is sent for mandatory confinement in a psychiatric institution. The problem created by this legal provision of mandatory confinement is that an accused who was insane at the time of the crime, but sane at the time of the trial, must be confined in a psychiatric institution even though he is considered sane. In order to avoid this injustice, the courts have distinguished between "insane automatism" and "sane automatism." Cases where an involuntary action has occurred for reasons other than insanity have involved a defence of "sane automatism" and, if successful, have resulted in full acquittal. The reason for creating the term "sane automatism" was to avoid the said unjustified functioning of the law. Amendments to legislation in South Africa have given courts wider discretion and they are no longer compelled to confine the accused to a psychiatric institution. The legislation is no longer unjust, with the result that the distinction between "insane automatism" and "sane automatism" is no longer necessary. The automatism defence (no longer "sane automatism") must still be retained, but as an ordinary defence that is indicative of an involuntary act, and therefore the absence of one of the elements of a crime (but without a specific indication of whether it is sane or insane automatism). Automatism must therefore be limited to grounds for exclusion of the element of an act, i.e. the voluntary and personal conduct of the accused.