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15CR Consent

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Consent
In theory an individual may waive certain rights, and therefore theoretically may consent to injury.
In delict the principle: volenti non fit iniuria (injury is not done to one who consents) expresses the
notion that a harmful act done with consent is not unlawful/wrongful so the wrongdoer is excused of
liability
However, delict involves wrongs between individuals, but in criminal law a crime is committed against
the community as a whole and so a victim may not waive such a right as there is a greater public
interest.
Therefore, it is not for the victim to render an unlawful act lawful by means of consent; it is
determined according to public policy
This defence has limited application and the general premise in criminal law is that a victim’s consent
to harm inflicted will not render an act lawful however there are exceptions.
Consent can be both a ground of justification (theft and malicious damage to property) and a defence
(rape)
REQUIREMENTS
(1) Complainant’s consent must be recognized by law as a possible defence
(2) It must be real (free and voluntary)
(3) Must be given by a person who is capable in law of consenting
Must not be mere submission, not as a result of fear or violence.
May be given tacitly or expressly
Must be given by the complainant, except in certain circumstances
Given before the act
Once given it remains revocable
(1) Consent must be recognized as a ground of justification by law
Q: Is the crime in question one which recognizes consent as a defence?
(a) Consent NEVER negates unlawfulness:
(1) Crimes against the State: treason and perjury
(2) Crimes against the community interests: domestic violence/woman/child abuse, slavery
(3) Crimes against the individual: murder
Consent does NOT operate as a ground of justification in cases of murder
CASE: S v Robinson 1968, AD
Facts: The deceased was experiencing severe financial problems and paid the accused to shoot and kill
him so that his wife would benefit from his insurance policies. Before the shooting occurred the
deceased expressed that the did not want to continue with the plan however the accused shot and
killed him anyway, and was charged with murder.
Issue: Does the unlawful, intentional taking of a man’s life at his own request constitute extenuating
circumstances and render the killer less blameworthy?
Court: The fact the deceased wanted and arranged to be killed does not exclude criminal
responsibility of the killer, although it does amount to extenuating circumstances. A person is not the
master of his own life and as such cannot give another the power to kill him. This is because a
contravention of infringement of bodily integrity and life of a person involves a relative injury to the
State whose interest is that public peace be kept and as such, the lives and health of its citizens be
preserved. A man cannot consent to the infliction of harm upon himself to the point of death for the
State requires that his life be preserved.
Principle: One cannot consent to being killed as the boni mores of society will not allow it.
A person assisting another in the commission of suicide is guilty of murder (Ex Parte Minister v
Justisie: In re S v Grotjohn)
CASE: R v Peverett
Facts: The accused and his lover (Edna) made a suicide pact and attempted to kill themselves by sitting
in his car and inhaling exhaust fumes directed into the car via a tube connected to the exhaust pipe.

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Both lost consciousness but were removed from the vehicle before they could die. The accused was
convicted of attempted murder
Court held: Although Edna was a free agent and under no compulsion to breathe the carbon dioxide,
the accused could not escape criminal liability for her unconsciousness and illness because she had told
him of her suicidal wishes and knew she would not open a window, so his acts were a means to that end
and more than just preparation for that end.
Exception - Euthanasia
This subject creates major problems and is entangled with public policy
There is active euthanasia in which a positive act is done in order to hasten a person’s death and this is illegal in
our law (S v Hartman) and there is passive euthanasia which involves the withdrawal of life-sustaining
mechanisms, for which there is some degree of tolerance in our law (Clarke v Hurst)
CASE: Clarke v Hurst
Facts: The deceased had a severe heart attack and his heartbeat and breathing ceased. His heartbeat
was restored but only after he suffered serious brain damage. He was comatose and never regained
consciousness and over time he deteriorated and he fell into a persistent vegetative state. He was in
this condition for 4 years and showed no sign of improvement; his brain had permanently lost the
capacity to induce a physical and mental existence at a level which qualified as human life. He had
previously signed a living will and the essential clause held that if there was no reasonable expectation
of his recovery from extreme mental or physical disability he should not be kept alive by artificial
means and heroic measures. His wife applied for an order for her to be curatrix so she could terminate
his life support; this would hasten his death naturally.
Court held: Although the deceased had indirectly consented to termination of his life support and the
hastening of his death by means of the living will, the ultimate test whether this can be allowed is the
legal convictions of the community (boni mores). Grounds of justification are unlimited.
Wrongfulness is tested according to society’s legal, as opposed to its moral convictions, but morality
plays a role in shaping legal convictions. The law is but a translation of society’s fundamental values
into policies and prescripts for regulating its members’ conduct.
With reference to S v Mokgethi the court held liability cannot exceed the bounds of reasonableness.
On these specific facts, what would the boni mores dictate? It involves a balancing exercise, and the
factors to be balanced include: quality of life of the patient, society’s sense of propriety, voluntary
consent to die with dignity
Application was successful and the deceaseds wife was allowed to authorize termination of naso-
gastric feeding
Law Commission Report on Euthanasia and Artificial Preservation of Life (1999)
USA Dr in Michigan assisting patients to die and argued that there is right to dignity and personal autonomy
Living will indicates one does not want to be kept alive artificially
To deny a patient the right to die under circumstances depriving them of dignity and control of their own body
Recommendations
A medical practitioner may, under specified circumstances, cease all further medical treatment of a patient whose
life functions are being maintained artificially while the person has no spontaneous respiratory and circulatory
functions or where the brainstem does not register an impulse
A competent person may refuse any life-sustaining medical treatment with regard to any specific illness from which
he/she may be suffering, even though such refusal may cause or hasten the death
A medical practitioner may prescribe sufficient drugs to control pain even though a secondary consequence may be
that the life of the patient is shortened
A medical practitioner may give effect to advance directive or enduring power of attorney of a patient regarding
refusal or cessation of treatment by administering palliative care
A medical practitioner may cease further medical treatment with regard to terminally ill patients who are unable to
make or communicate decisions, provided this is in accordance with the wishes of the family.
(b) Consent will be a defence (by the nature and definition of the crime)
Rape (consent is a valid defence for rape)
Theft: unlawful appropriation of a thing capable of being stolen with the intention of permanently
depriving the owner of ownership if the owner consents to the thing being taken or used then there
is no theft
(c) Consent MAY be a defence (depending on public policy)
Assault

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Consent ▪ ▪ ▪ ▪ ▪ ▪ In theory an individual may waive certain rights, and therefore theoretically may consent to injury. In delict the principle: volenti non fit iniuria (injury is not done to one who consents) expresses the notion that a harmful act done with consent is not unlawful/wrongful so the wrongdoer is excused of liability However, delict involves wrongs between individuals, but in criminal law a crime is committed against the community as a whole and so a victim may not waive such a right as there is a greater public interest. Therefore, it is not for the victim to render an unlawful act lawful by means of consent; it is determined according to public policy This defence has limited application and the general premise in criminal law is that a victim’s consent to harm inflicted will not render an act lawful however there are exceptions. Consent can be both a ground of justification (theft and malicious damage to property) and a defence (rape) REQUIREMENTS (1) (2) (3) ❖ ❖ ❖ ❖ ❖ Complainant’s consent must be recognized by law as a possible defence It must be real (free and voluntary) Must be given by a person who is capable in law of consenting Must not be mere submission, not as a result of fear or violence. May be given tacitly or expressly Must be given by the complainant, except in certain circumstances Given before the act Once given it remains revocable (1) Consent must be recognized as a ground of justification by law Q: Is the cr ...
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