'n Kritiese ondersoek na dronkenskap as verweer in die Suid- Afrikaanse strafreg

[摘要] English: A person commits an offense if there is behavior on his part that matches all theelements set out in the definition of the crime, such conduct is unlawful andaccompanied by the necessary culpability. Thus a person's actions have to comply withthe elements of a crime namely legality, conduct, causation, unlawfulness, criminalcapacity and culpability. Alcohol can influence a person in different ways for exampleeven excluding a person's criminal capacity or culpability.The problem now arises as to how criminal liability is affected by the intake of alcoholand how the defence of voluntary intoxication should be dealt with in our law.Before the case of Chretien it was not possible to raise the defense of voluntaryintoxication. After the decision in Chretien the legal position regarding the defence wasas follows:1. If a person is so intoxicated that he can not act voluntarily then he can not beconvicted of any crime;2. It is possible in extreme circumstances that a person's criminal capacity canbe excluded which leads to him also not being criminally liable for any crime;3. Intoxication can even exclude general intent.The public was not satisfied with the outcome of the Chretien judgment and demandedthat a less lenient approach be followed. The Legislature intervened and promulgatedthe Criminal Law Amendment Act 1 of 1988. The most important changes to theposition regarding the defense of voluntary intoxication after the commencement of thisAct can be summarized as follows: 1. When the accused is so intoxicated that he could not perform a voluntary act,in terms of the Chretien descission, he can not be found guilty on the maincharge. He will however be guilty of contravening section 1 of Act 1 of 1988;2. When the accused is so intoxicated that his criminal capacity is excluded hewill also in terms of the Chretien decision not be found guilty on the maincharge, but he will be guilty of contravening section 1 of Act 1 of 1988.3. When the accused is intoxicated enough to exclude his intention but not hiscriminal capacity, he will in terms of the Chretien descision not be found guiltyof the intent-crime. He will also not be guilty of contravening section 1 of Act 1of 1988 because this situation is not covered in the wording of the Act.However, if he is accused of a crime that requires intent and his intoxicationexcludes such intent, he can still be found guilty on an alternative charge thatonly requires negligence.4. An accused's intoxication will not exclude his culpability where the elementrequired to prove is negligence. Instead an accused's intoxication can beused to prove his negligence.Even after commencement of Act 1 of 1988 there are still many loopholes in our lawconcerning the defence of voluntary intoxication. The approach of both Canada andAustralia are studied in this research with the objective of comparing their respectivepositions with the approach to the defence followed in South-African law and makingsuggestions on how to improve our law.

[发布机构] University of the Free State