In South Africa, the law makes way for two forms of homicide: murder and culpable homicide. While the former, being murder is much easier to define and prosecute because of its clear-cut definition, culpable homicide operates in a grey area and sometimes acts as a catch-all for those instances of homicide where murder is not the intention.
Culpable homicide is also considered a common law crime, which means that there is no legislation governing the definition of the crime. Instead we look to case law, the courts and historical influences on the South African legal system to define it. The only legislation that we can look to when discussing culpable homicide is the Criminal Procedure Act 51 of 1977, which lays out how to conduct a criminal case and the procedures for prosecution – it does not define the actual crime.
To understand culpable homicide, we have to look at the accepted definition thereof and fully break it down. According to SAPS, culpable homicide is defined as the “unlawful and negligent killing of another human being”. The keyword here is negligent, whereas with murder it would be the intentional killing, with culpable homicide the death need only have occurred as a result of negligence.
Let’s look at an example. If a motorist is driving and becomes distracted by their phone, and subsequently gets into a car accident and someone dies as a result of that, they may be charged with culpable homicide. Why? Because, although they did not intend for the accident to happen, they were negligent when driving and that negligence resulted in the death of another, making the driver culpable. If there was no neglect on any party’s side, then the crime of culpable homicide did not occur, as the law does make way for accidents.
When we try and establish what negligence is and whether a person was being negligent, we ask whether or not a reasonable person, in the same position would have foreseen the consequences of such an action. Therefore if we look at the example used above, a reasonable person would indeed have foreseen that being on their phone and not paying attention to the road might cause and accident.
In terms of the law, there is no prescribed sentence for culpable homicide and it entirely up to the courts and judge to decide. There are often mitigating circumstances to the crime that result in lesser sentences. For example, should the driver above be found guilty, the mitigating circumstance might be the reason he was looking at his phone - such as an emergency call from a loved one. In some cases, there may also be a suspended sentence where no time is served at all, but the person still have a criminal records for culpable homicide.
Probably the most famous case of culpable homicide in South Africa is that of Oscar Pistorius. In this case the judge did not accept that he murdered his girlfriend, however, she did accept that he was guilty of culpable homicide for firing a gun through a locked door, and a reasonable person may have foreseen that such an action would result in the negligent death of another. His sentence was for five years with a portion of it being served under correctional supervision once he had served 10 months in prison. However this was eventually overturned by the appeals court and converted to a murder conviction, showing just how thin the line between culpable homicide and murder truly is and how as mentioned, it sometimes becomes a catch-all for those cases of homicide that fall within a grey area.
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