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Browsing Law by Subject "Act 1 of 1988"

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    'n Kritiese ondersoek na dronkenskap as verweer in die Suid- Afrikaanse strafreg
    (University of the Free State, 2013-12) Viljoen, Marina; Botha, Rinda
    English: A person commits an offense if there is behavior on his part that matches all the elements set out in the definition of the crime, such conduct is unlawful and accompanied by the necessary culpability. Thus a person's actions have to comply with the elements of a crime namely legality, conduct, causation, unlawfulness, criminal capacity and culpability. Alcohol can influence a person in different ways for example even excluding a person's criminal capacity or culpability. The problem now arises as to how criminal liability is affected by the intake of alcohol and 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 voluntary intoxication. After the decision in Chretien the legal position regarding the defence was as follows: 1. If a person is so intoxicated that he can not act voluntarily then he can not be convicted of any crime; 2. It is possible in extreme circumstances that a person's criminal capacity can be 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 demanded that a less lenient approach be followed. The Legislature intervened and promulgated the Criminal Law Amendment Act 1 of 1988. The most important changes to the position regarding the defense of voluntary intoxication after the commencement of this Act 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 main charge. 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 he will also in terms of the Chretien decision not be found guilty on the main charge, 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 his criminal capacity, he will in terms of the Chretien descision not be found guilty of the intent-crime. He will also not be guilty of contravening section 1 of Act 1 of 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 intoxication excludes such intent, he can still be found guilty on an alternative charge that only requires negligence. 4. An accused's intoxication will not exclude his culpability where the element required to prove is negligence. Instead an accused's intoxication can be used to prove his negligence. Even after commencement of Act 1 of 1988 there are still many loopholes in our law concerning the defence of voluntary intoxication. The approach of both Canada and Australia are studied in this research with the objective of comparing their respective positions with the approach to the defence followed in South-African law and making suggestions on how to improve our law.