Abstract

Once a crime has been committed, full repentance and restoration do not have any bearing on liability, but may be taken into account in mitigation of sentence. On the other hand, there is no question of criminal liability ensuing for an attempt at a crime if there is a withdrawal from the envisaged crime while still in the stage of preparation, and before, in South African law, reaching the watershed moment of the “commencement of the consummation”. However, what occurs between the moment when the attempt begins, and the moment when the crime has been completed, where there has been a withdrawal from the criminal purpose, is more contested terrain. The disagreement does not apparently arise in the South African case law, where the few judgments that refer to this question have consistently held that where the accused withdraws after the commencement of the consummation of the crime, there will be attempt liability and, at best, the accused may rely on the abandonment as a mitigating factor in sentencing. However, as is discussed, prominent South African academic commentators, along with comparative sources in both the civil-law and common-law jurisdictions, demur from such an “unyielding analysis”, and would regard such withdrawal as giving rise to a defence to criminal liability. Which approach ought to be applied in South African law? 
 The question may be posed as to how to categorise a defence of voluntary withdrawal? It is neither a justification ground nor a ground excluding fault, but rather a ground excluding punishment. The uniqueness of the defence is demonstrated in that the accused has already met all the requirements for liability, and thus it is not an intending criminal, but an actual criminal who is being considered. This is at least true of the common-law approach (also adopted by South African law), where a two-stage approach is applied to the trial, relating first to establishing criminal liability and followed, if guilt is so established, by an inquiry into sentence. At the outset, it may be stated that the view that is taken in the discussion that follows is that there is no good reason to treat voluntary abandonment as a special defence. As Yaffe has stated, to grant a defence on the basis of abandonment is to mistake the absence of a reason to issue a particular sanction rather than a lower one for a sufficient reason to issue no sanction at all.In the discussion that follows, the current case law is examined, whereafter the alternative approach contended for by some academic writers (and used in other jurisdictions) is discussed; the arguments for and against a renunciation defence are set out, before these aspects are drawn together in a final concluding analysis.

Highlights

  • Once a crime has been committed, full repentance and restoration do not have any bearing on liability (Simester and Sullivan Criminal Law: Theory and Doctrine (2001) 305), but may be taken into account in mitigation of sentence. (For a discussion of the concept of remorse in sentencing, in respect of which repentance and restoration may be strong indicators, see Terblanche A Guide to Sentencing in South Africa 3ed (2016) 229‒230)

  • Proponents of the defence would certainly want to recognise the difference between these scenarios, given that there is no debate that remorse after completing a crime does not affect the attribution of criminal liability; Rabie suggests that such a defence may better be founded on the objective criterion that an accused who withdraws after an attempt would cause less harm to the community than an accused who is remorseful about committing a crime, even if he takes steps to ameliorate the harm caused after the commission of the crime (1981 SACC 59)

  • Having briefly adverted to the arguments generally raised for and against the defence in the previous discussion, the last section of this piece seeks to justify a final contention in favour of not allowing the defence in South African law, by examining selected theoretical and practical concerns

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Summary

Introduction

Once a crime has been committed, full repentance and restoration do not have any bearing on liability (Simester and Sullivan Criminal Law: Theory and Doctrine (2001) 305), but may be taken into account in mitigation of sentence. (For a discussion of the concept of remorse in sentencing, in respect of which repentance and restoration may be strong indicators, see Terblanche A Guide to Sentencing in South Africa 3ed (2016) 229‒230). The uniqueness of the defence is demonstrated in that the accused has already met all the requirements for liability, and it is not an intending criminal, but an actual criminal who is being considered (Rabie 1981 SACC 58 (author’s own emphasis) This is at least true of the common-law approach ( adopted by South African law), where a two-stage approach is applied to the trial, relating first to establishing criminal liability and followed, if guilt is so established, by an inquiry into sentence. In the discussion that follows, the current case law is examined, whereafter the alternative approach contended for by some academic writers (and used in other jurisdictions) is discussed; the arguments for and against a renunciation defence are set out, before these aspects are drawn together in a final concluding analysis

Case law
Some comparative observations
Arguments for and against the voluntary withdrawal defence
Concluding remarks
Full Text
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