A client poses a question to their attorney: My ex-boyfriend (Y) saw me and my new love interest (X) at a restaurant. Y aggressively confronted me and wanted to know why I have moved on so quickly. X then nicely asked him to leave me alone, whereafter X started to swear at Y. X then lost his temper and punched Y. Y laid a charge of assault against X. X lost his temper because of Y, certainly he cannot be guilty of the offence?
As a point of departure, provocation does not constitute a general defence in criminal cases. However, it can be argued to play a mitigating factor to reduce the severity of a crime (for example, it may reduce murder to culpable homicide). Provocation looks at whether an accused intended to unlawfully commit a crime but acted under a sudden loss of control due to an emotional outburst. The courts are also expected to take it into account when assessing culpability for the purpose of sentencing.
Provocation may comprise either words or conduct or a combination of both. South African law is partly based on Roman law and Roman-Dutch law, which did not regard anger, jealousy or other emotions as an excuse for any criminal conduct, but only as a factor which might mitigate sentence if the emotion was justified by provocation.
C R Snyman Criminal Law (2014) argues that it is possible that extreme emotions such as anger or rage flowing from the provocation may be so strong that X, at the time he reacted to the provocation, lacked criminal capacity. What this means is that should it be proved that X, at the time of the provocation, suffered such emotional instability to appreciate the wrongfulness of his act or conduct himself according to such appreciation, he cannot be found guilty of the crime.
Snyman also points out that provocation may also affect an accused person’s intention to commit a crime. In certain cases, provocation may blur or exclude X’s awareness of unlawfulness and therefore affects his intention to commit the crime. This would especially play a role when “intention” is an element of a crime (for example, murder, assault with the intent to do grievous bodily harm etc.). At the same time, it is also noteworthy to consider that pleading provocation can also prove intent. It can establish a motive to commit a crime. This is especially the case when there is a reasonable period between the provocation and the time the offence was committed.
In the past there have been cases where an accused person raised the defence of provocation and succeeded to be acquitted for their behaviour (See: S v Arnold 1985 (3) SA 256 (C); S v Nursigh 1995 (2) SACR 331 (D); S v Moses 1996 (1) SACR 701 (C) and S v Wiid 1990 (1) SACR 561 (A)). However, it is important to note that our courts are very cautious to acquit an accused in these sorts of cases and they will look at the circumstances of each case. The courts will usually look at the subjective circumstances of the case. In S v Eadie 2002 (3) SA 719 (SCA) the Supreme Court of Appeal judge Navsa JA held that the courts should further evaluate the subjective circumstances against the judicial expectation of behaviour into the sequence of inferential reasoning, to decide the credibility of the accused’s version. Therefore, it would not be so easy for an accused to argue provocation to justify unnecessary behaviour.
Therefore, provocation can be raised as a ground to argue mitigation factors in crime and in very exceptional circumstances prove to be a defence to avoid conviction, however, the courts have been very cautious to allow an accused to get away with unacceptable behaviour.
- J M Burchell et al South African Criminal Law and Procedure vol 1 (2011) 4th
- S v Eadie 2002 (3) SA 719 (SCA).
- Oosthuizen & another v S (144/2018)  ZASCA 92.
- CR Snyman Criminal Law (2014) 6th edition
- CR Snyman Criminal Law (2002) 4 Edition
- S v Mokonto 1971 (2) sa 319 (a)
- S v Wiid 1990 (1) SACR 561 (A)
- S v Arnold 1985 (3) SA 256 (C)
- S v Nursigh 1995 (2) SACR 331 (D)
- S v Moses 1996 (1) SACR 701 (C)
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)