The Thin Line Between Murder and Culpable Homicide

What are the key differences between murder and culpable homicide?

Murder

Murder is defined in South African law as the unlawful and intentional causing of the death of another human being.¹ This definition encapsulates four essential elements, namely: (a) causing the death; (b) of another person; (c) unlawfully; and (d) intentionally. For practical purposes, the first element can be condensed into a single requirement. However, it is worth noting that this element comprises three distinct components: (i) an act or omission; (ii) causation; and (iii) the resulting death.

The crime of murder encompasses a broad spectrum of conduct, given the diverse circumstances in which a person can unlawfully and intentionally cause another’s death. The moral reprehensibility of such conduct can vary significantly. For instance, person A may kill person B with premeditation and malice, or person A may kill person B in the heat of the moment, following provocation. Other scenarios include euthanasia,² assisted suicide,³ or even killing one’s spouse in response to discovering them committing adultery. South African law holds person A liable for murder in all these circumstances. However, it has been argued that a more nuanced approach would be preferable, with a grading of murder offences to reflect varying levels of moral culpability. Similar approaches are adopted in other jurisdictions, such as the United States and other parts of Europe.

The actus reus of murder comprises a voluntary act or omission that causes the death of another human being. This requires a voluntary positive act (commissio) or, in circumstances where there exists a legal duty to act, a voluntary omission (omissio) . The act or omission must be both the factual and legal cause of the deceased’s death.

In terms of causation, the act or omission must be a conditio sine qua non i.e., without it, the death would not have occurred. Furthermore, the court must determine whether policy considerations warrant regarding the act or omission as the legal cause of death.

Neither suicide nor attempted suicide constitutes a crime in South African law.⁴ However, instigating, assisting, or inducing another to commit suicide may, in certain circumstances, amount to murder or culpable homicide.

The victim of murder must be a live human being. The killing of an unborn foetus is treated as abortion, rather than murder. To determine whether a child was born alive, various tests are employed, including whether the child breathed, possessed an independent blood circulation, or was completely expelled from the mother’s body. Section 239(1) of the Criminal Procedure Act⁵ provides that a child is deemed to have been born alive if it is proven that the child breathed, regardless of whether it had an independent circulation. This presumption is rebuttable.

The killing must be unlawful, and certain grounds of justification, such as private defence, necessity, or official capacity, may serve to justify an otherwise unlawful killing.

Finally, the requisite form of culpability in murder is intention. The negligent, albeit unlawful, causing of another’s death constitutes culpable homicide. The intention requirement is satisfied if person A has direct intention (dolus directus) to kill person B, or if person A merely foresees the possibility of person B’s death and reconciles themselves to that eventuality (dolus eventualis). The test for intention is purely subjective, although this mental state may be inferred from the objective facts established by the State. Awareness of the unlawfulness of the act forms an integral part of intention. Moreover, any mistake regarding a material element of the crime negates intention.

Culpable Homicide

Culpable homicide is defined in South African law as the unlawful, negligent causing of the death of another human being.⁶ The elements of culpable homicide are identical to those of murder, except for the distinguishing factor of negligence. As such, the actus reus of culpable homicide comprises four essential elements: (a) causing the death; (b) of another person; (c) unlawfully; and (d) negligently.

The test for negligence is objective i.e., it involves measuring person A’s conduct against that of a reasonable person in similar circumstances. However, this test must be applied contextually, taking into account factors such as, for example, medical care.⁷

The culpability required for culpable homicide is negligence. The test for negligence involves considering: (a) whether a reasonable person in the same circumstances would have foreseen the possibility of person B’s death resulting from person A’s conduct; (b) whether that reasonable person would have taken steps to guard against such a possibility; and (c) whether person A’s conduct deviated from what would be expected of a reasonable person under the circumstances.

In cases where person A is charged with murder but lacks intention due to factors such as intoxication or provocation, the charge is not automatically reduced to culpable homicide. Rather, the court must establish that person A was negligent in causing person B’s death.⁸ In S v Van As,⁹ the Appellate Division set aside a conviction for culpable homicide arising from an assault. It was determined that person A could not reasonably have foreseen that person B would fall, knock his head, and die after being slapped.

There are instances where person A, despite initially appearing to possess an intention to kill person B, is convicted of culpable homicide rather than murder. These cases typically involve situations where person A exceeds the bounds of a recognised ground of justification, such as private defence (self defence). In these instances, person A is convicted of culpable homicide due to the absence of dolus, or intention to kill, in its proper legal sense.¹⁰

It is worth noting, as was held in S v Ngubane,¹¹ that intentional action does not preclude a finding of negligence. Consequently, person A may be found guilty of culpable homicide despite having killed person B intentionally.

The Primary Differences Between Murder and Culpable Homicide

Murder requires intention, whereas culpable homicide requires negligence. In murder, the accused must either have direct intention (dolus directus) to kill, or must foresee the possibility of death and reconcile themselves to that possibility (dolus eventualis). In culpable homicide, the accused must fail to act with the level of care that a reasonable person would have exercised in similar circumstances, leading to the death of another person. In other words, a murder accused must have the specific intention to cause harm or death. If that intention cannot be proved, then the question turns to whether the accused foresaw the possible consequences of their actions or did not take reasonable steps to prevent harm. That shifts the enquiry from one of murder to one of culpable homicide.

Naturally, murder involves a higher level of moral reprehensibility, given that the death is caused intentionally, either with premeditation and malice or in the heat of the moment. Culpable homicide, on the other hand, involves a lower level of moral reprehensibility, as the death is caused due to negligence, where the accused failed to take the precautions a reasonable person would take in the same circumstances. It is for this reason that one may encounter attorneys trying to “save” their clients by pleading down to culpable homicide rather than murder. Given its more severe moral culpability, a conviction for murder generally leads to harsher penalties, including life imprisonment. Due to the less severe moral culpability, a conviction for culpable homicide typically results in less severe sentences than for murder.

A Note on “Attempt”

A person is guilty of attempting a crime if, intending to commit it, they take unlawful action that goes beyond mere preparation and begins the execution of the crime. They are also guilty if the crime is impossible to complete, but they believe it could happen, or if they voluntarily stop after starting to execute the crime.¹²

Where an accused intends to kill another living human being but fails to do so, for instance, due to missing the target, the victim’s survival despite injuries, or the use of inadequate means, they may be found guilty of the distinct crime of attempted murder. If the accused mistakenly believes they have killed another living human being, only to discover that the person was already deceased, they may still be liable for attempted murder. The pivotal factor in determining criminal liability is the accused’s subjective state of mind.¹³ Since intention is an essential element of attempt crimes, and an individual cannot intend to be negligent, there is no crime of attempted culpable homicide.¹⁴

Learn more about “the reasonable person” here.

Written by Theo Tembo