Non-pathological criminal incapacity relating to provocation or emotional stress – an overview of developments in South African law

Abstract

The development of the defence of non-pathological incapacity reflects a movement towards recognizing that an accused person should not be punished unless he or she is indeed blameworthy. This is furthermore consistent with the rights to dignity, and freedom and security of the person, set out in the Bill of Rights. However, policy concerns about the availability of a defence based on provocation or emotional stress have been raised. The development of the defence in this context and its apparent, but as yet uncertain, demise in the wake of the judgement of the Supreme Court of Appeal in S v Eadie is examined in this article, which provides an overview of the issues animating this area of law.