insanity.pdf

8 INSANITY AND DIMINISHED CAPACITY
BEFORE THE COURT
Adelene Africa
After reading this chapter you should be able to
∗ Distinguish between ‘insanity’ and ‘mental disorder’
∗ Understand the legal test for criminal responsibility
∗ Distinguish between pathological and non-pathological criminal incapacity
* Understand the role which psychological knowledge plays in determining mental state
* Be familiar with the controversies surrounding expert psychological testimony in cases of
criminal responsibility
Importance of this chapter
Mental illness is one of several factors recognised by South African law as
negating criminal responsibility. Statutory provision in the form of the
insanity defence has been made for people who suffer from mental illness, and
they cannot be held responsible for their actions. Consequently, the law
acknowledges that mentally ill offenders cannot be sanctioned in the same
way as sane offenders (Snyman, 2002). Thus, where mental illness and
criminal responsibility are concerned, the law is clear as to the legal test which
has to be applied, the nature of expert testimony which has to be adduced, and
the disposition of such offenders. Psychologists (and psychiatrists) 1 play an
important role in assisting the court with expert testimony regarding the
mental state of the offender. In some instances, this role may be problematic
because the nature of psychological evidence adduced in cases concerned with
questions of ‘sanity’ can be contentious.
Developments in the last twenty years have resulted in judicial recognition
of the role of psychological factors, other than mental illness, in the negation
of criminal responsibility. This recognition is typically expressed in the
defence of non-pathological criminal incapacity and encompasses the idea that
transient mental states are grounds for exculpation. The acceptance of this
defence into South African law widened the scope of expert psychological and
psychiatric testimony to include psychological evidence.
Lawyers and mental health professionals often cross swords in cases where
a defence of non-pathological criminal incapacity is mounted., The differences
in interpretation and application have sparked controversy both within and
between these professions. For example, mental health professionals differ in
the way that they construe the defence, resulting in a myriad of diagnostic
categories which are ostensibly ‘temporary mental conditions’ (Gillmer,
1996). The defence has received much attention from legal commentators,
1 A Psychologist has a Masters degree in Psychology . For the purposes of this chapter,
the term will refer to those practitioners who have postgraduate training in Clinical
Psychology. A Psychiatrist is a medical doctor who has specialised in Psychiatry.

Insanity and diminished capacity 2
who have focussed largely on its form and content, as well as the factors
which the courts have taken into account in passing judgement. These
discussions have also focussed on the content of expert psychological
testimony in cases where it has been adduced, specifically in relation to
reasons why courts have either accepted or rejected such testimony (Snyman,
1989; 1991; 1995; Rumpff, 1990; Burchell, 1995; Boister, 1996).
This chapter explores the role which psychological knowledge plays in
assisting the court in determining criminal responsibility where the accused’s
mental state is in question. In order to achieve this aim, the chapter provides
an overview of the statutory provisions for defences which negate criminal
responsibility. These include the insanity defence, the defence of diminished
responsibility, and the defence of non-pathological incapacity. This provides a
platform to explore some of the difficulties which arise when psychological
conceptions of mental illness (or disorder) intersect with legal notions of
insanity. Figure 8.1 provides a flowchart summary that the reader may wish to
refer to during the course of the chapter.
Yes
Was X able to act in accordance with an
appreciation of wrongfulness?
Yes
Trial proceeds
Verdict: Guilty
or not guilty
Disposition:
Imprisonment
X is charged with an offence
Did X appreciate the wrongfulness of the act?
No
What was X’s mental state at the time of the
offence?
Pathological condition? Non-pathological condition?
Mental
disorder
Mental defect Temporary
emotional
states
Verdict: Not
guilty by
reason of
mental illness
Disposition:
Indefinite
hospitalisation
Verdict: Not
guilty
Figure 8.1 Flowchart of the possible routes through the criminal justice
system when criminal responsibility is at stake
Free

Africa 3
Insanity is a
legally defined
state of mind and
does not refer to
a mental
disorder
Mental illness
refers to a
behavioural or
psychological
pattern which
causes personal
distress and
impairment
The Insanity Defence (Pathological Criminal Incapacity)
The term ‘insanity’ refers to a legally defined state of mind and does not
refer to a particular psychological disorder or state. In fact, as will be shown,
legal conceptions of insanity may be far removed from psychiatric or
psychological conceptions of mental illness.
Fitness to stand trial
In terms of criminal procedure, every person is presumed to be sane until
the contrary is proven. However in the case of mental illness or defect, when
an accused’s capacity to follow court proceedings is compromised, he or she
cannot be tried in a court of law. Section 77 of the Criminal Procedure Act 51
of 1977 (CPA) therefore makes provision for an inquiry and report on the
accused’s fitness to stand trial. Further statutory provision is made for expert
testimony to establish the presence of mental illness or defect and the extent to
which it impacts on the accused’s ability to follow proceedings. Where the
offence has been violent, as in the case of murder, rape or culpable homicide,
Section 79 of the CPA provides for the inquiry to be conducted by a panel of
psychiatrists at a psychiatric hospital. Psychiatric evidence regarding the
presence of mental illness and its impact on the capacity of the accused to
understand proceedings is contained within the report presented to the court.
However, the court may also require psychological evidence - for example,
evidence pertaining to the accused person’s level of intellectual functioning.
This inquiry is conducted and reported on by a psychologist 2 . If the findings of
the psychiatrists and psychologist conclude that the accused is not fit to stand
trial, he or she will be admitted to a state psychiatric hospital for an indefinite
period of time.
Where fitness to stand trial is concerned, the
psychologist may play a role at the court’s request.
Psychological knowledge regarding factors such as
intellectual functioning, personality functioning and
emotional functioning may therefore be admitted as
testimony so that the court is put in a position to make a
finding regarding the accused person’s capacity to
follow proceedings.
The impact which the accused person’s mental state has on his or her
functioning is relevant to both the capacity to understand and to follow court
proceedings, as well as his or her criminal responsibility. However, as will see,
an inquiry into an accused’s fitness to stand trial has no bearing on the inquiry
into his or her responsibility.
The Legal Test for Insanity in South Africa
When the insanity defence is raised, the court is concerned as to whether
the accused can be held criminally responsible in light of the purported mental
2 In terms of Section 6 of the Criminal Matters Amendment Act 68 of 1998 (which amends Section 79
(1) of Act 51 of 1977), clinical psychologists are also empowered to conduct and report on forensic
assessments concerning pathological mental states. Prior to this, only psychiatrists were legally
allowed to perform this duty.
Activity 8.1.
X is accused of murdering his neighbour.
In court he babbles incoherently and laughs
inappropriately when the judge addresses
him. Is he fit to stand trial? Explain your
answer.

Affective
functioning
refers to
emotional
functioning.
Conative
functioning
refers to
volitional
functioning
Insanity and diminished capacity 4
illness or defect (Reed and Seago, 1999). There are various legal tests which
must be applied when this defence is raised, and while there are differences in
various jurisdictions, these tests, and the defence in general, have their roots in
English law.
The legal test for insanity in South Africa is rooted in the McNaughton
Rules of 1843 which stemmed from a murder trial where the accused was
found ‘not guilty on the ground of insanity’. This right-from-wrong test is
concerned with the accused’s legal responsibility at the time of the alleged
offence and Card (1992, p.127) summarises it as follows:
(a) Everyone is presumed sane until the contrary is proved.
(b) It is a defence to a criminal prosecution for the accused to show
that he was labouring under such a defect of reason, due to disease
of the mind, as either not to know the nature and quality of his act
or, if he did know this, not to know that he was
doing wrong.
Activity 8.3
Discuss the difference between affective,
conative and cognitive functioning.
The McNaughton test relies heavily on the accused’s
cognitive capacity (intellectual capacity) which may
have compromised his or her insight and judgment. ‘Defect of reason due to
disease of mind’ is central to the defence and does not consider other aspects
Affective
functioning
refers to
Activity 8.2
emotional What is the legal test for insanity in South
functioning. Africa?
Conative
functioning
refers to
volitional
functioning
of psychological functioning namely,
affective (emotional) and conative (volitional)
functioning, which are integral to human
nature.. As a result, in English law, the
defence cannot be raised if the offence was committed because of emotional
upheaval caused by emotions such as rage, jealousy or stress. Equally, it is not
possible to raise the defence of insanity where the accused has committed an
alleged offence because of poor self-control as would be in the case of an
‘irresistible impulse’. Card (1992) criticises the McNaughton Rules as being
too restrictive because they do not allow for a defence of ‘irresistible impulse’.
He says that the narrow focus on impaired cognitive capacities ignores the
reality that mental illness can impair conative functioning.
English law therefore explicitly requires biological evidence of mental
illness and its concomitant effects, with the result that psychiatrists generally
serve as expert witnesses in cases where ‘sanity’ is contested. This may
explain why affective and volitional factors are not recognised in this defence,
as they can be better understood within a psychological framework as opposed
to a strictly medical or biological model.
Box 8.1 Who was Daniel McNaughton?
Mental defect
refers to
significantly
below average
intellectual
functioning
The McNaughton Rules of 1843 have their roots in the trial of Daniel McNaughton who was accused
of murdering Edward Drummond. McNaughton, a wood-turner from Glasgow was in his early thirties
and suffered from persistent delusions of persecution by the Tories. He was plagued by these delusions
for several years prior to the murder and he tried to evade the ‘spies who were following him by going to
England and to France. He claimed that they continued to follow him and that he was compelled to kill
the British Prime Minister, Sir Robert Peel but mistakenly shot Edward Drummond who was Prime
Minister’s Private Secretary. At his trial eight medical witnesses testified that his psychosis resulted in an
inability to distinguish right from wrong. Today McNaughton’s symptoms would probably qualify for a
diagnosis of schizophrenia, however as the diagnosis has not been developed at that time, records show
that he was diagnosed with ‘chronic mania and dementia’.

Africa 5
The jury found McNaughton ‘not guilty by reason of insanity’and he was remanded to a psychiatric
institution for the rest of his life. (Rollin,1977).
In the late nineteenth century, the scope of the McNaughton Rules was
broadened in South Africa [CT3]so as to include the ‘irresistible impulse’ rule.
The courts acknowledged that mental illness or defect could impair conative
functioning and therefore negate responsibility (Kruger, 1980). In R v Koortz
1953 (1) SA 371 (A), the re-formulated McNaughton Rules were accepted by
the court:
A person is not punishable for conduct which would in ordinary
circumstances have been criminal if, at the time, through disease of mind
or mental defect -
(a) he was prevented from knowing the nature and quality of the
conduct, or that it was wrong; or
(b) he was the subject of an irresistible impulse which prevented him
from controlling such conduct
(Gardiner and Lansdown, cited in Kruger, 1980, p.156).
Where the insanity defence was raised, most cases were decided under the
‘irresistible impulse’ rule but several difficulties arose in its application. These
centred around establishing whether in fact the impulse derived from mental
illness and not from emotional factors such as jealousy, greed or revenge. In
addition, it was difficult to establish whether the impulse was indeed
irresistible and whether the accused genuinely had no control over it. These
problems and perceived loopholes within the law were addressed by the
Rumpff Commission of Inquiry into the Responsibility of Mentally Deranged
Persons and Related Matters (RP 69/1967), which was established following
the assassination of the South African Prime Minister, Hendrik Verwoerd, by
a mentally ill offender. The Rumpff Commission concluded that a person’s
responsibility for his or her actions is based on the ability to exercise free
choice and the ability to distinguish between right and wrong (Kruger, 1980).
The recommendations of the Commission subsequently gave rise to the
provisions in Section 78(1) of the CPA which states that:
A person who commits an act which constitutes an offence and who at
the time of such commission suffers from a mental illness or mental
defect which makes him incapable
(a) of appreciating the wrongfulness of his act; or
(b) of acting in accordance with an appreciation of the wrongfulness of
his act,
shall not be criminally responsible for such act.3
3 This section of the Act has subsequently been amended as follows:
A person who commits an act or makes an omission which constitutes an offence and
who at the time of such commission suffers from a mental illness or mental defect
which makes him or her incapable
(a) of appreciating the wrongfulness of his or her act or omission; or
(b) of acting in accordance with an appreciation of the wrongfulness of his or her act
or omission.shall not be criminally responsible for such act or omission
Section 5 of the Criminal Matters Amendment Act 68 of 1998
The clinical
assessment
process includes
the clinical
interview,
psychological
testing and
collateral
information

Insanity and diminished capacity 6
Diagnosing Mental Illness
The criteria which courts apply with respect to responsibility embody a
right-from-wrong-test, which assesses the capacity to act according to the
appropriate insight. The test has biological (i.e. presence
of mental illness) and psychological components (i.e.
impairment of cognitive and/or conative functions) and
a successful defence requires the presence of both.
Case example 8.1 : Depression, murder and criminal responsiblity
Activity 8.5
Discuss the difference between mental
illness and mental defect.
In S v Kavin 1978 (2) SA 731 (W), the accused was charged with murdering his wife, daughter and son. He was
also charged with the attempted murder of another daughter. His defence was that he was suffering from a mental
illness which rendered him non-responsible. He was examined by three psychiatrists who concurred with a
diagnosis of ‘severe reactive depression superimposed on a type of personality disorder displaying immature and
unreflective behaviour’ (p. 734). Two psychiatrists opined that he was able to appreciate the wrongfulness of his
act while a third was uncertain. However, all three concurred that his depressive state rendered him incapable of
acting in accordance with an appreciation of wrongfulness. In this case the accused’s conative functioning was
impaired by a depressive disorder.
Case Exercise
Read the case, along with S v Mahlinza 1967 1 SA 408 (A) (both can be accessed in the collections of law reports
held by most academic libraries). Compare the arguments regarding what constitutes mental illness by focussing
on the expert evidence which was led.
The DSM-IV TR
is a taxonomy of
mental disorders
The law does not provide a definition of mental illness or mental defect
and therefore makes provision for expert testimony to establish this (Van
Oosten, 1990). In order to make a diagnosis of mental illness, the psychologist
uses a variety of tools as part of the clinical assessment process. The clinical
interview provides the psychologist with the opportunity to gather salient
aspects of the accused’s psychosocial history. This history-taking includes
information such as the nature of the symptoms, the level of distress which is
experienced, family history and occupational functioning. In addition the
clinician (psychologist) may make use of measures such as psychological tests
which provide objective information about the accused’s functioning. For
example, personality tests will yield information regarding personality style
and functioning while intelligence tests assess cognitive
functioning. Collateral information (third party
information) may be gathered from significant others so
as to provide additional insight into the accused’s
functioning in various spheres. This information may
be provided by family members, work colleagues or other professionals (such
as general practitioners, psychiatrists and psychologists) whom the accused
has consulted.
An important diagnostic tool which psychologists in South Africa use to
make diagnoses, is the Diagnostic and Statistical Manual of Mental Disorders
(DSM-IV TR) 8(APA, 2000). This system classifies mental disorders in terms
of their diagnostic criteria (symptoms) and provides clinicians with the
information necessary to make diagnoses. For example, to make a diagnosis of
Schizophrenia 4 , the clinician has to establish the presence of psychotic
symptoms, the duration of these symptoms and the degree to which the
4 Schizophrenia is a psychotic disorder characterised by delusions, hallucinations, disorganised speech
and disorganised or catatonic behaviour. (DSM-IV-TR, APA, 2000).
Activity 8.4
What are the various tools which the
psychologist may use to make a diagnosis?
Psychologists
diagnose mental
illness and do
not determine
criminal
responsibility

Africa 7
person’s functioning has been impaired. The DSM-IV TR (APA, 2000)
provides guidelines which assist the clinician in this process. The evidence
which the psychologist presents in court will therefore allude to the presence
of mental illness (for example, Schizophrenia) and how this impacts on the
accused’s functioning.
It is important to note that the psychologist, in providing a diagnosis, is not
required or able to offer an opinion on the accused’s criminal responsibility.
This is a matter to be decided by the courts. As Ogilivie Thompson J A in R v
Harris 1965 (2) SA 340 (A) at 365 B-C states,
... it must be borne in mind that...in the ultimate analysis, the crucial
issue of the appellant’s criminal responsibility for his actions at the
relevant time is a matter to be determined not by psychiatrists but by the
Court itself. In determining that issue - initially the trial Court and on
appeal this Court - must of necessity have regard not only to expert
medical evidence but also to all the other facts of the case, including the
reliability of the appellant as a witness and the nature of his proved
actions throughout the relevant period’. This dictum highlights that the
issue of determining criminal responsibility is a legal question while the
diagnosis of mental illness is a psychological question.
A diagnosis of mental illness does not automatically imply that an accused
is non-responsible. Snyman (2002) says that the fact that a person has been
declared mentally ill in terms of the Mental Health Act 18 of 1973, does not
imply that he or she is also mentally ill in terms of s78(1) of the CPA. This is
because the latter is chiefly concerned with how mental illness negates
responsibility, and not with the nature of mental illness itself. For example, if a Mentally ill
person is diagnosed with Schizophrenia and certified in terms of the Mental offenders are
Health Act 18 of 1973, this does not automatically negate responsibility. In hospitalised for
order for a successful defence to be raised, it has to be
indefinite
Activity 8.6 periods of time
proven that the symptoms of Schizophrenia impaired What kind of psychological knowledge can
the person’s cognitive and/or conative functioning. assist the court in making findings
regarding mental state?
Disposition of Mentally Ill Offenders
Where the court accepts the defence of insanity, the accused is found not
guilty and will be remanded into the care of a state psychiatric hospital for an
indefinite period of time (Kruger 1999). For example, in S v Kavin 1978 (2)
SA 731 (W), the court accepted the evidence that the accused’s depression
impaired his conative functioning and therefore he was found not guilty of
murder and attempted murder. He was remanded into the care of a state
psychiatric hospital for an indefinite period, and was declared unfit to possess
a firearm. In cases such as this, provision is made for the review of the
patient’s progress and the hospital may recommend a discharge based on the
prognosis of the illness and the danger which the patient poses to him or
herself and society. This process has to be ratified by the courts, particularly
where the offence has been violent (Kruger, 1980).
The Insanity Defence – Controversies and Challenges
The insanity defence in South Africa has not evoked the same kind of
controversy as in the case of American jurisdictions. For this reason it is useful
to explore some of the debates which have plagued legal and psychological

Insanity and diminished capacity 8
The legal test for
pathological
incapacity is
identical to that
for nonpathological
incapacity
practitioners in the U.S. American conceptions of insanity are much broader
than those found in South African law. Consequently, a wide range of
psychological states, which do not necessarily have a biological basis, are
considered to be instances of insanity (Slovenko, 1995). The inclusion of an
array of diagnoses as grounds for exculpation has been viewed as problematic
by various legal commentators. Dershowitz (1994), for example, is sceptical
of the mitigating function of syndrome evidence involving allegations of
abuse. He views such evidence as an ‘abuse excuse’ which purely functions as
a means of evading responsibility. He comments on psychiatry and
psychology’s complicity in helping offenders to evade appropriate punishment
by providing them with ‘cop-outs’ and ‘sob stories’ couched in psychological
jargon. He feels that this kind of evidence threatens the foundations of the
American legal system as it expands the parameters of excusable behaviour.
This kind of thinking, along with the public outcry subsequent to the acquittal
of John Hinckley 5 , has resulted in the re-evaluation of the insanity defence at
both state and federal levels in the US. Consequently, some American
jurisdictions have abolished the defence while in others the McNaughton rules
have been modified (Steadman, McGreevy, Morrissey, Callahan, Robbins and
Cirincione, 1993).
Slovenko (1995) argues that it is difficult to establish the current status of
the insanity defence in America, given the many changes which it has
undergone in various states. Current debate has centred on whether or not the
defence should be abolished completely, particularly because it is seen as a
loophole for those who should be subject to the full force of the law. Some
proponents of abolition argue that criminal responsibility is a matter of law
and should be left to juries for deliberation and not to the assessment of
psychiatric experts. Slovenko says that these critics argue that ‘psychiatry is
corrupting the criminal justice system by expanding the concept of mental
illness, always at the expense of the concept of responsibility’ (1995, p.34).
While South African law has not been plagued with the same conundrums,
there is some controversy regarding the legal test which is applied. The debate
centres on the fact that the tests for pathological and non-pathological
incapacity are identical. The defence of non-pathological incapacity
acknowledges that psychological states such as anger, fear, shock and
emotional stress may render a person non-responsible for his or her actions.
Consequently, the circumstances within which an accused may be exculpated
are substantially broadened. Unlike a successful insanity plea, a verdict of not
guilty does not imply indefinite hospitalisation. Instead the accused is free to
resume his or her life.
Petty (1998) argues that the application of the provisions within s78 (1) of
the CPA to what are in fact two distinct mental states, is problematic. The
dilemma which this poses is exacerbated by the fact that because the law
construes mental illness in terms of the degree of criminal responsibility, no
diagnostic parameters have been set. From a psychological perspective, there
is a clear distinction between distress and impairment caused by pathology and
that which is caused by a temporary emotional state. However, these kinds of
5 Public outcry followed the 1982 insanity acquittal of John Hinckley following the
assassination attempt on President Reagan (Steadman, McGreevy, Morrissey,
Callahan, Robbins and Cirincione, 1993).

Africa 9
distinctions are not central to legal deliberations because the court is
concerned with whether the accused met the criteria for the legal test and not
with the nature of the mental state. Petty (1998) feels that the lack of
conceptual clarity and the fact that the defences can be raised in the
alternative, present challenges for the psychologist. Consequently, the
boundaries between the defences are blurred, resulting in ‘an anomalous,
circuitous process whereby the court applies the test for criminal capacity...’
(Petty, 1998, p. 4).
Diminished Responsibility
South African law, in line with Anglo-American jurisdictions,
acknowledges that there are varying degrees of criminal responsibility. As a
result, Section 78(7) of the Criminal Procedure Act (51 of 1977) states that:
If the court finds that the accused at the time of the commission of the
act in question was criminally responsible for the act but that his
capacity to appreciate the wrongfulness of the act or to act in accordance
with an appreciation of wrongfulness of the act was diminished by
reason of mental illness or mental defect, the court may take the fact of
such diminished responsibility into account when sentencing the
accused.
In terms of this provision, the accused may be suffering from some form of
mental illness but the level of impairment experienced does not fulfil the
requirements for the legal test of insanity. The pathology is then considered to
be a mitigating factor in the degree of responsibility. A defence of diminished
responsibility does not afford the accused complete exculpation, but may
result in a reduced sentence instead of indefinite confinement to a state
psychiatric hospital (Snyman, 2002).
Controversy
It stands to reason that expert testimony is required to establish that an
abnormality of the mind existed at the time of the offence. However some
English legal commentators have questioned the role which psychiatrists and
psychologists play in assessing diminished responsibility. In a report by the
Butler Committee on Mentally Abnormal Offenders (cited in Clarkson and
Keating, 1990), the proficiency of such experts in
assessing degrees of mental responsibility was
questioned, since this is a concept of law and morality
and not of psychiatry or psychology. The Committee
questioned whether the accused’s ability to conform to
the law could be measured clinically given that the law requires a substantial
impairment of mental responsibility. Allen argues that ‘ the question of
substantial impairment is inappropriate for medical witnesses as it is one of
degree and whether it exists depends not only on the medical evidence but on
all the evidence of the case relating to the facts and circumstances of the
killing’ (1995, p. 128). He argues that the courts have allowed expert opinion
in these matters so as to produce a greater range of exemptions from murder.
Activity 8.78.
Discuss the elements of the defence of
diminished responsibility

Insanity and diminished capacity 10
The defence of
automatism
questions the
voluntariness of
the act
Sane automatism
is caused by a
psychological
blow resulting in
an altered state
of consciousness
Dissociative
amnesia is
characterised by
gaps in memory
caused by
traumatic events
Other Defences Related to Capacity/voluntariness of the act – Sane and
Insane Automatism
The provisions within s78 (1) of the CPA are chiefly concerned with the
extent to which mental illness affects criminal capacity. Thus while the court
acknowledges that an offence has been committed, its chief concern is whether
the accused can be held criminally responsible. However, there are instances
where the court questions whether the act itself was voluntary, and in these
cases the defence of automatism is raised. In this defence, an altered state of
consciousness is presumed to result in a person committing an offence in an
automaton state. When the voluntariness of the act is in question, it does not
constitute an act in law and therefore the accused cannot be held criminally
responsible (Kruger, 1999).
South African courts, in line with Anglo-American
jurisdictions, distinguish between sane and insane
automatism. While the voluntariness of the act is central
to both of these defences, a successful outcome has
Activity 8.89.
Explain how the defence of diminished
responsibility differs from the insanity
defence
differing implications for the accused. In cases of sane automatism, an
acquittal means that the accused is free, while in instances of insane
automatism, the accused is remanded to a psychiatric hospital for an indefinite
period of time.
Sane Automatism
Sane automatism occurs when a person involuntarily performs an action
while experiencing a change in his or her state of consciousness. This altered
state does not have a pathological basis which can be linked to some inherent
biological cause. Instead, the automatism is presumed to arise from severe
psychological stress caused by life events, and results in ‘dissociation’. This
complete splitting between mental and physical activity renders the person
incapable of controlling his or her actions and consequently the act which is
performed cannot be recognised as an act in law (Schopp, 1995).
Dissociation is a psychological state which involves ‘a disruption in the
usually integrated functions of consciousness, memory, identity or perception
of the environment’ (Barnard, 1998, p. 28). The impairment in the integration
of functions is caused by a ‘psychological blow’ which causes the person to
dissociate. In the same way that a physical blow to the head can result in an
altered state of consciousness, so too can traumatic experiences impair
functioning. For example, if a person experiences a horrific attack, he or she
may dissociate from that experience and experience amnesia for the event.
Consequently, the person will be unable to recall details of the event while not
experiencing any other difficulties in memory. This dissociation and the
resultant amnesia occur, ostensibly because the psychological effects of the
event are too traumatic for the conscious mind to deal with.
Dissociative amnesia is an example of a dissociative disorder which has
been forwarded as a diagnosis in the defence of sane automatism. The
diagnostic features (symptoms) which are reported relate to gaps in memory,
and these in turn are linked to traumatic or stressful events. In essence, a
person suffering from dissociative amnesia will not suffer any other memory
impairment and the amnesia is limited to the traumatic experience itself
(DSM-IV TR, APA, 2000). For example, a person may report amnesia for
Dissociation is a
complete
splitting between
mental and
physical activity

Africa 11
episodes of sexual abuse at the hands of another. The physical and
psychological trauma which characterises sexual abuse triggers the
dissociative episode resulting in an altered state of consciousness. He or she
‘blocks out’ the painful episodes and experiences
amnesia for these events. Consequently the person is
unable to relate any of these experiences as they are
inaccessible to conscious memory. Mounting a defence
of sane automatism
In order to mount a defence of sane automatism it must be proven that the
there has been an antecedent build-up such as a period of conflict or dispute
which the person has experienced. The dissociative episode which the person
undergoes must have been caused by some external trigger mechanism For
example, a person a who has been experiencing marital difficulties may be so
overwhelmed by the news that his or her is spouse is filing for divorce that he
or she reacts violently and murders the spouse. Consequently, he or she may
have no conscious memory of this action because of the extreme nature of the
emotional reaction (in this example, rage), which completely overwhelms the
conscious mind and renders him or her incapable of goal-directed action.
Where such a claim is made, the psychologist has to assess whether the
accused experienced a discrete dissociative episode at the time of the murder.
An integral part of this diagnosis is whether the person has amnesia for the
event. This diagnosis is15 difficult to make in that the psychologist relies on
the accused’s version of events, which may not always be reliable. The
assessment as to whether the person has a true absence of memory for that
discrete period is also problematic, given that the clinician again relies on the
accused’s account. On one hand, it may be more plausible that a person
‘blocks out’ memories of situations in which they have
been victimised, while on the other, it is more difficult
to accept such claims made by a person who is the
victimiser. While the question of the veracity of such
claims falls within the ambit of the court, the
psychologist is to a certain extent placed in the position of assessing the
accused’s truthfulness. In essence one has to ask whether it is plausible that
someone who commits a crime triggered by an external stressor is so
overwhelmed by emotion, that he or she has no memory of it.
For example, in S v Pederson [1998] 3 All SA 321, the appellant appealed
against his conviction for the murder of his estranged wife. The appellant
claimed that he had not acted consciously and voluntarily in killing his wife
and that even if the act was voluntary, he had no intention of murdering her.
He claimed that he was under the influence of alcohol and had been angry and
aggressive because his wife was leaving him. There was a history of domestic
violence which culminated in the stabbing of the wife. The appellant claimed
to have no recollection of the incident as he had experienced an acute
catathymic crisis at the time of the murder. The psychological evidence
defined this crisis as a ‘mental storm’ which overwhelmed his mental capacity
such that he was unable to exert control over actions. The Court questioned
whether the Appellant had experienced a true absence of memory for the
incident or whether the amnesia served the purpose of repressing the trauma
caused by the incident. The Court held that for the defence of sane automatism
to succeed, the Appellant had to prove that he had experienced true amnesia
Activity 8.910.
Explain what is meant by the voluntariness
of an act.
Activity 8.1011
Give three examples of psychological
blows which may result in sane automatism

Insanity and diminished capacity 12
for the event and that there was an absence of control by the mind over his
actions. The Court upheld the conviction the basis of the evidence that the
accused had not acted in an automaton state and that his actions were
sufficiently goal-directed.
Case example 8.2 : How do we assess the truthfulness of an accused claiming sane automatism?
In S v Potgieter 1994 (1) SACR 61 (A) the appellant appealed against the conviction and sentence which was
imposed for the murder of her partner. At the trial, the defence argued that the appellant acted in a state of sane
automatism and therefore was not criminally liable. The evidence which was led, indicated that she has been in a
abusive relationship with her partner for six years. She had endured physical, verbal, emotional and financial
abuse and also witnessed the maltreatment of her children from a previous marriage. The appellant testified that
on the day in question, the deceased had once again assaulted her and ordered her to leave the house with her
children. He left the house and she called a locksmith to open the safe so that she could retrieve the pistol which
was kept there. She inserted a magazine and left the holstered pistol on the vanity slab in the bathroom. She
testified that that night, she had woken up when she heard the baby crying. She found the deceased sitting in the
lounge and asked him to turn down the volume on the television. She gave the baby his bottle and when she
returned to her room, the deceased stood in the doorway, grabbed her and threw her against the wall. Her last
memory was of him shouting at her and she saw his blurred image moving away from her. She then heard a loud
bang after which she realised that she had a pistol in her hand and that he must have shot the deceased who was
lying on the bed. Based on her account of events, the defence argued that the appellant had acted in an automaton
state. The psychological evidence to support this highlighted her emotional reaction subsequent to the shooting as
well as the fact that she did not have a history of violence. The state however questioned her account and her
truthfulness as a witness. There were several inconsistencies in her testimony which did not accord with the facts
of the case. Consequently, the state argued that her actions were not consistent with automatism as she had
performed several goal-directed actions which resulted in the death of her partner. The court accepted the state’s
evidence and found that the accused’s version of the events did not accord with the factual evidence. On appeal,
the court upheld the conviction and supported the findings of the trial court. However in considering the sentence
imposed, the court found that the trial court had erred in imposing a sentence of imprisonment. The court held that
the abusive conditions which the appellant had endured, had resulted adversely affected her and that murder was
committed when she was emotionally distraught and unable to exercise the requisite self-control. Consequently,
the sentence was set aside and the matter was remitted to the trial court for consideration of a sentence of
correctional supervision.
Case Exercise
Read the full case (in the law reports). Consider the argument advanced by the defence counsel. Construct your
own argument in support of the defence’s contention that the trial judge had misdirected himself in finding that the
appellant had acted in a goal-directed manner.
Insane Automatism
While sane automatism is brought about by external factors, insane
automatism arises from a change in consciousness which is caused by mental
illness (Reed and Seago, 1999). In this sense it can be seen as a variant of the
insanity 16 defence in that it also requires the ‘disease of mind’ criterion. For
example, the psychotic symptoms associated with schizophrenia can impair
cognitive and volitional functioning to such an extent that the person is unable
to act in a goal-directed manner. Consquently, the law acknowledges that an
accused who suffers from a biological condition which may induce an
automaton state, cannot be held criminally responsible as the act occurred
outside of conscious awareness. A successful defence of insane automatism
results in a verdict of ‘not guilty by reason of insanity’ which requires
mandatory commitment to a psychiatric hospital for an indefinite period of
time. The conditions governing commitment are therefore the same as for

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those who have been found not guilty under the insanity plea (Reed and
Seago, 1999).
Automatism : controversies and challenges
While English courts have clear-cut guidelines as to the interpretation of
sane automatism, American courts have failed to develop any clarity as to
their interpretations. Schopp (1995), in reflecting on the stance in American
jurisdictions, says that some courts have viewed automatism as a variation of
the insanity plea while others have expressly rejected this notion and
considered it a separate defence. Finkel (1988) refers to the sane automatism
defence as an ‘atypical’ insanity defence because the jury rules on whether
there was an act and does not concern itself with the existence of disease of
mind or the issue of intent. Thus the mental state of the accused is not central
to ascertaining responsibility. Finkel (1988) argues that psychiatric testimony
provides ‘the room, shadings, and interpretative leeway’ (p. 291) which
enables lawyers to employ the defence if other avenues have failed.
The legal debates as to the interpretation of the defence are paralleled by
psychological debates regarding the clinical veracity of acute periods of
dissociative amnesia. Schopp (1999) argues that the incidence of the complete
splitting between mental and physical activity is a clinical rarity. In fact, the
DSM-IV TR (APA, 2000) states that an acute form of dissociative amnesia
which is characterised by a sudden onset is less common than dissociation
arising from protracted periods of trauma.
As in Anglo-American jurisdictions, claims of sane automatism are viewed
with caution by South African courts because a diagnosis of dissociation relies
heavily on the accused’s account of the event. There are no objective
psychological measures for assessing whether he or she experienced a discrete
dissociative episode or the concomitant amnesia. While the factual evidence is
central to the court’s deliberations, the psychologist’s diagnosis hinges on the
accused’s account. The difficulty which arises is that expert psychological
evidence is based on a claim of a discrete period of dissociation which
occurred some time before the assessment. Kruger (1999) says that the
reliability and truthfulness of the accused are crucial factors in laying a factual
basis for the defence. This raises the question as to whether the expert is
placed in the position of assessing the reliability of the accused or whether
such claims are accepted on the face of what the accused has said. It is
therefore an ethical and professional dilemma - does the expert have to assume
the role of moral judge when asked to adduce evidence of such a nature? In
addition, if the accused’s truthfulness is questioned by the court, how is the
expert’s testimony viewed, based as it is on the accused’s account?
Non-pathological Criminal Incapacity
In the last twenty years South African courts have come to recognise the
importance of psychological factors in the assessment of criminal
responsibility. The provisions within s78(1) of the CPA have been interpreted
in such a way that factors other than mental illness have been considered in the
issue of non-responsibility (Strauss, 1995). Thus the biological component
(i.e. mental illness) of this test is not the sole negating factor, and emotional
factors have been held to affect criminal capacity.

Insanity and diminished capacity 14
Non-pathological states refer to a wide range of temporary emotional
reactions17 which may affect the accused’s ability to distinguish between right
and wrong or the ability to act in accordance with an appreciation of
wrongfulness (Snyman, 1989). As with the concept of insanity, nonpathological
incapacity is not a psychological construct and merely refers to
non-responsibility which does not arise from mental illness. Several landmark
cases (such as S v Arnold 1985 (3) SA 256 (C) and S v Campher 1987 (1) SA
940 (A) introduced the notion of non-pathological states
such as emotional stress, personality disintegration,
shock or anger, which can impair cognitive and/or
conative functioning. In S v Laubscher 1988 (1) SA 163
(A) for example, the accused appealed against his
Activity 8.1112.
Identify the elements of the defence of
provocation
conviction for the murder of his father-in-law. The shooting occurred as result
of a confrontation with his parents-in-law regarding their efforts to dissolve
his marriage and to deny him access to his son. The accused confronted his
father-in-law, whereupon he fired twenty-one rounds into various rooms, some
of which hit and killed the deceased. The defence led psychological and
psychiatric evidence at the trial and the accused was said to have suffered
from a ‘total personality disintegration’ which resulted in an impairment of
functioning. However, both the trial and appeal court held that the expert
testimony did not accord with the facts of the case. These facts showed that
the accused demonstrated insight into what he was doing and that his actions
were goal-directed and voluntary. The Laubscher judgement also commented
that expert testimony is not indispensable in this defence and that the court is
in a position to make a decision based on the facts of the case.
Given that commonly accepted textbook diagnoses for temporary
impairment do not exist, the defence has been interpreted by experts in various
ways. Consequently, various psychological terms have been bandied about in
an attempt to explain phenomena which do not fall within the parameters of
psychopathology. Gillmer (1996) describes the defence as a ‘many-headed
creature’ which can embody anything from a ‘total psychological
disintegration’ to a ‘narrowing of consciousness’, ‘a separation of intellect and
emotion’, ‘annihilator rage’, ‘dissociation’ or ‘good old-fashioned
automatism’ (p. 20). It would seem as if psychology has attempted to provide
the language and understanding to describe those non-pathological states
which do not fit into the law’s conception of human nature. However, Gillmer
(1996) questions whether psychology has not been complicit in assisting the
law with diagnoses to support claims of temporary impairment, in order that
courts view these as more credible and therefore acceptable as grounds for
non-responsibility.
Provocation
The defence of provocation also falls within the ambit of non-pathological
incapacity because it focuses on words or behaviour or a combination of the
two which incite a person to react violently (Snyman, 2002). The emotional
state induced by the provocation is temporary but may be so intense that the
person’s cognitive and or conative functioning is impaired. The law is
concerned with the effect of provocation on the accused, taking into account
personal characteristics such as temperament which may explain the violent
behaviour (Theron du Toit, 1993).

Africa 15
An example of the way in which expert testimony has been adduced in this
defence, is that of spousal homicide. Theron du Toit draws on the work of
Hoffman and Zeffert (1988) by saying that ‘[t]he opinion of expert witnesses
is admissible whenever, by reason of their special knowledge or skill, they are
better qualified to draw inferences than the court. The admissibility of the
evidence of expert witnesses is furthermore governed by the relevance of that
evidence’ (1993, p. 247). She says that developments within case law
regarding spousal homicide have pointed to the need for psychiatric or
psychological evidence in ascertaining criminal responsibility. In the case of S
v Campher 1987 (1) SA 940 (A), the court acknowledged this need and
consequently expert testimony regarding battered woman syndrome was
considered to be relevant and admissible. However, as cases such as S v Wiid
1990 (1) SACR 561 (A) have shown, expert testimony is not indispensable,
particularly when a factual foundation for non-responsibility has been laid in
evidence. The result is that the onus is on the State to prove that the accused
was criminally responsible. When a factual foundation has been laid, expert
testimony may serve the purpose of facilitating this process but in the final
analysis, it may well be superfluous (Theron du Toit, 1993). This antithetical
situation highlights the difficulties which arise in defences which fall within
the ambit of non-pathological incapacity. On one hand, expert testimony
serves the purpose of outlining the psychological factors which lead to nonresponsibility.
On the other, expert testimony is not required by law because
the court may be in a position to make a finding based solely on the factual
evidence (Van Oosten, 1993).
Case example 8.3: Can rage impair conative functioning?
In S v Moses 1996 (1) SACR 701 (C), the accused was charged with the murder of his lover. On the day
in question, the accused and the deceased had unprotected intercourse after which the deceased declared
that he had AIDS. The accused testified that he became enraged at hearing this and went to find an
ornament with which he struck the deceased twice on his head. He then went to the kitchen to get a
small knife and stabbed the deceased in the side. He returned to the kitchen to find a big knife with which
he slit the deceased’s throat and wrists. The accused testified that he was overwhelmed with hatred for
the deceased and he felt that his trust had been abused. It also reminded him of the sexual abuse which he
had suffered at the hands of his father. His mind was flooded with thoughts as to how he would break the
news of being HIV positive to his family and he also feared dying a horrible death. He testified that he
was aware of what he was doing but was unable to control his actions because he was so enraged. In
support of the defence of non-pathological incapacity resulting from extreme provocation, the defence
led psychiatric and psychological evidence. This evidence focused on the accused’s psychosocial history
which included sexual abuse, domestic violence and depression. He was diagnosed with borderline
personality disorder and it was argued that he had manifested various neurotic behaviours such as head
banging, bedwetting and fear of the dark, in childhood. This psychiatric ‘picture’ of the accused was
coupled with a psychological ‘picture’ which traced a pattern of poor impulse control. It was argued that
he was prone to anger and outbursts of violence and that he had exhibited rage reactions whenever he
was provoked. The defence argued that given the accused’s personality structure and poor impulse
control, his conative ability was impaired. He was therefore unable to control himself even though he
was cognitively aware of his actions. In contrast, the state led rebuttal evidence in which the psychiatrist
argued that a person’s conative functioning can only be impaired in sane automatism or other
pathological states. It was argued that the accused did not act in an involuntary or automatic manner and
that his actions were goal-directed and guided by conscious thought. He therefore had the cognitive
capacity to distinguish right from wrong. The accused did not exhibit any signs of dissociative amnesia

Insanity and diminished capacity 16
and therefore did not fulfil the criteria for sane automatism. The court found that the state’s evidence was
problematic as it focussed on the accused’s cognitive capacity – which was never in dispute. The defence
had argued that the accused had the cognitive capacity to appreciate wrongfulness but was unable to
control his actions because of extreme provocation. In weighing up the evidence, the court found the
accused’s ability to control his actions was significantly impaired and he was therefore acquitted.
Case Exercise
Read the case in the law reports. Provide a coherent argument as to why the accused should not have
been acquitted.
Non-pathological incapacity : controversies and challenges
There are several problematic issues regarding the defence of nonpathological
incapacity which are highlighted by legal commentators.
The first issue relates to the onus of proof. Unlike the insanity defence, the
accused does not bear the onus of proof, instead the State is required to prove
beyond reasonable doubt that that s/he had criminal capacity at the time of the
offence. However, the accused has to lay a foundation in evidence which the
State then has to rebut (Boister, 1997). Burchell (1995) argues that there is an
‘inherent injustice’ in placing the burden of proof on the accused claiming
insanity while a plea of non-pathological incapacity places the onus of proof
on the state. This ‘injustice’ is extended to the successful outcomes of these
defences - in the former, it means confinement to a psychiatric hospital while
the latter provides for complete acquittal. Burchell (1995) feels that a complete
revision of legislation and burden of proof standards may address these
problems but he is not optimistic about this occurring. It would seem that the
courts are intent on applying the subjective test of criminal capacity
particularly in the case of non-pathological incapacity.
Following on from this, Burchell (1997) questions
whether South African law is correct in applying a 19
subjective test of criminal capacity and argues that it
may be more useful to have some kind of objective test
by which to measure the accused’s behaviour. He
Activity 8.1213
Identify three non-pathological states
which may be used as grounds for
exculpation.
views the normative yardstick used in Anglo-American jurisdictions as being
more useful and argues that a partial excuse as opposed to complete
exculpation is more appropriate. .
A third issue centres around a concern that the defence may be abused by
those who have exhausted all other avenues in attempt to escape punishment.
Snyman (1991) says that the courts have therefore treated such defences with
great caution because they can be easily raised. In the same way that courts are
circumspect with regards to the defence of sane automatism, so too do they
view the defence of non-pathological incapacity. Snyman (2002) says that in
those cases in which the defence has been considered seriously, the accused
had shown a cumulative build-up of stress and/or provocation which then
resulted in a temporary impairment of cognitive and/or conative functioning.
Fourthly, while the notion of temporary emotional reactions suggests an
interplay of psychological phenomena, there is no statutory requirement for
expert evidence in such cases. It would appear that while a significant number
of reported cases have relied on expert testimony, it is unclear whether the
courts consider this evidence as indispensable for the defence to succeed.
Kruger (1999) argues that psychiatric and psychological evidence do not play

Africa 17
an indispensable role because the court itself is in a good position to make a
decision based on the facts of the case. Burchell (1995) views the indecision
regarding the importance of this testimony as problematic. There are instances
when courts do not receive a balanced view of the accused’s actions because
the state has not adduced psychiatric or psychological evidence. He suggests
that judges should require the state to lead such evidence so as to mitigate
against a one-sided view of the accused’s actions.
The ambivalent attitude which courts have towards expert testimony is further
fuelled by the courts’ concern as to the accused’s reliability and truthfulness
since this defence hinges on the accused’s account of events. Burchell (1995)
says that this defence by its very nature, is viewed with caution and if the
accused’s reliability and truthfulness are questionable then the expert
testimony will also be viewed in the same light (see, for example, S v
Potgieter 1994 (1) SACR 61 (A). Burchell (1995) argues that one of the
problems which arises in the forensic assessment of an accused, is that it
occurs before the evidence has been heard in court. Therefore in pursuit of the
truth, it would be advisable to allow the expert to re-evaluate his/her opinion
after the factual evidence has been led. In this way greater weight may be
given to such evidence after it has been established that the accused has
provided the court with a convincing account of events.
Finally, while the defence has been the focus of legal debate, it has also
received some attention from mental health professionals, albeit to a lesser
extent. The focus of discussion in these circles has been on the nature of
expert evidence which is adduced (Van Rensburg & Verschoor, 1989; Strauss,
1995; Van der Merwe, 1997). However the role of expert testimony in these
cases has raised particular challenges for experts, and Zabow (1990) says that
they ‘have been less than successful in attempting to adapt theory, diagnosis
and clinical method to the framework of existing legal standards’ (p.5). In
addition, in these cases experts do not have recourse to textbook diagnoses
which can describe temporary cognitive or conative impairment (Strauss,
1995).
The discussion has shown that South African courts have been more accepting
of the role of psychological factors in negating criminal responsibility but it
would seem that a rather ambivalent attitude towards expert testimony
prevails. As Boister concludes ‘[t]his indicates clearly that the crucial aspect
of the defence of non-pathological criminal incapacity is not its psychological
validity but its legal validity’ (1996, p. 373).
Summary
1. The legal test for insanity in South Africa has a biological component
(ie the presence of mental illness) and a psychological component (the
impairment of cognitive and/or conative functioning).
2. The diagnosis of mental illness falls within the domain of psychiatrists
and psychologists while the assessment of criminal responsibility falls
within the domain of the court.
3. In the defence of automatism the voluntariness of the act is in question.
The person cannot be held criminally liable because the act is

Insanity and diminished capacity 18
committed while he or she is an altered state of consciousness and is
unable to perform goal-directed actions.
4. The defence of non-pathological incapacity allows for temporary
emotional states to be used as grounds for exculpation.
Recommended reading
Boland, F (1999). Anglo-American insanity defence reform: The war between
law and medicine. Aldershot: Ashgate/Dartmouth.
Burchell, J. M. (1997). South African Criminal Law and Procedure vol 1:
General principles of Criminal Law. (Third edition) Cape Town: Juta.
Reznek, L. (1997). Evil or ill? Justifying the insanity defence. London:
Routledge.
Snyman, C. R. ( 2002). Criminal Law. (Fourth edition). Durban: Butterworths.
Slovenko, R. (1995) Psychiatry and criminal culpability. New York: John
Wiley and Sons.
Exercises
1. How does the assessment of fitness to stand trial differ from an assessment
of criminal responsibility. Use two examples to illustrate your answer.
2. The defence of non-pathological incapacity provides a loophole in the law
for those accused who want to evade criminal responsibility. Discuss this
statement .
3. Psychological evidence is superfluous in assisting the court in determining
criminal responsibility. Argue in favour or against this statement by
drawing on case law to support your argument.
4. John is charged with the murder of his mother and his attorney raises
queries regarding his mental state at the time of the offence. Collateral
information from his sister indicates that John had been ‘acting strangely’
for a few weeks prior to the offence. She reports that he was agitated,
unable to sleep at night and would pace around restlessly. He also had an
insatiable appetite which was quite out of character. On the day of the
murder, John’s mother told him to do some gardening. He seemed very
upset and agitated and was mumbling incoherently. He became enraged
and bludgeoned his mother with a spade. Using a diagram, illustrate the
process which should be followed to ascertain whether John can be held
criminally responsible.
5. Emma is charged with the murder of her lover but claims to have no
memory of the incident when questioned by the police. She recalls that
they had an argument about her partner’s infidelity and that she had been
very upset by this. She has no memory of shooting her partner and says
that it feels as if she ‘blacked out’ for a while. Her first memory
subsequent to the shooting is of seeing her partner lying on the floor with
the gun next to her. When Emma was questioned by the police, she
appeared confused, disoriented and tearful. As her attorney, you will be

Africa 19
arguing that Emma cannot be held criminally responsible on nonpathological
grounds. Construct an argument to support your claim that
she was unable to exercise volitional control because she was
overwhelmed by rage. Draw on case law to support your argument and
suggest how psychological evidence may assist your case.
References
Allen, M. J. (1995). Textbook on Criminal Law. London : Blackstone Press Limited.
American Psychiatric Association (2000). Diagnostic and Statistical Manual of Mental
Disorders-TR (Fourth edition Revised).
Barnard, P. G. (1998). Diminished capacity and automatism as a defence. American
Journal of Forensic Psychology, 16(2), 27- 62.
Boister, N. (1996). Recent cases : general principles of liability. South African Journal of
Criminal Justice, 9(3), 371-374.
Burchell, J. (1995). Non-pathological incapacity: evaluation of psychiatric testimony. South
African Journal of Criminal Justice, 8(1), 37-42.
Burchell, J. M. (1997). South African Criminal Law and Procedure Vol 1: General Principles
of Criminal Law. (Third edition) Cape Town: Juta.
Card, R. (1992). Criminal Law. London : Butterworths.
Clarkson, C. M.. V. and Keating, H. M. (1990). Criminal Law : Texts and materials. London
: Sweet and Maxwell.
Criminal Procedure Act, 51 of 1977.
Criminal Matters Amendment Act 68 of 1998.
Dershowitz, A (1994). The Abuse Excuse and other cop–outs, sob-stories and evasions of
responsibility. New York : Free Press.
Finkel, N. J. (1988). Insanity on trial. New York: Plenum Press.
Gillmer, B. (1996). Psycho-legal incoherence. Paper presented to the National Congress of the
South African Psychological Society. Johannesburg, September 1996.
Kruger, A. (1980). Mental health law in South Africa. Durban: Butterworths.
Kruger, A. (1999). Accused: Capacity to understand proceedings: Mental illness and criminal
responsibility. In E. Du Toit, F. De Jager, A. Paizes, A. Skeen& S. van der Merwe(eds.).
Commentary on the Criminal Procedure Act (Service 22). Cape Town: Juta.
Rollin, H (1977). ‘McNaughton’s madness’. In D. West and A.Walk (eds). Daniel
McNaughton: His trial and the aftermath. Kent: Gaskell Books.
Petty, C. (1998). The psychopathology of self-control. Unpublished MA thesis, University of
Stellenbosch.
Reed, A. and Seago, P. (1999). Criminal Law. London: Sweet and Maxwell.
Rumpff, (1990). Feite of woorde. Consultus, 3 (1), 19-22.
R v Harris 1965 (2) SA 340 (A)
S v Arnold 1985 (3) SA 256 (C)
S v Campher 1987 (1) SA 940 (A)
S v Kavin 1978 (2) SA 731 (W)
S v Laubscher 1988 (1) S A 163 (A)
S v Mahlinza 1967 (1) SA 408 (A)
S v Moses 1996 (1) SACR 701 (C)
S v Pederson 1998 3 All SA 321
S v Potgieter 1994 (1) SACR 61 (A)
S v Wiid 1990 (1) SACR 561 (A)
Schopp, R. F. (1991). Automatism, insanity and the psychology of criminal responsibility: A
philosophical enquiry. Cambridge: Cambridge University Press.
Slovenko, R. (1995) Psychiatry and criminal culpability. New York: John Wiley and Sons.
Snyman, C. R. (1989). Die verweer van nie-patologiese ontoerekeningsvatbaarheid in
die strafreg. Tydskrif vir Regswetenskap, 14(1), 1-15.
Snyman, C. R. (1991). Provokasie as volkome verweer in die Strafreg. Consultus, 4(1),35-38.
Snyman, C. R. ( 2002). Criminal Law. (Fourth edition). Durban: Butterworths.
Steadman H., McGreevy, M., Callahan, L., Robbins, P. and Cirincone, C. (1993). Before and
after Hinckley: evaluating insanity defence reform. New York: Guilford Press.

Insanity and diminished capacity 20
Strauss, S. A. (1995). Nie-patologiese ontoerekeningsvatbaarheid as verweer in die
strafreg. South African Practice Management, 16(4), 14-34.
Theron Du Toit, R. (1993). Provocation to killing in domestic relationships. Responsa
Meridiana, 6, (3), 230-252.
Van der Merwe, R. (1997). Sielkundige perspektiewe op tydelike nie-patologiese
ontoerekeningsvatbaarheid. Obiter, 18(1), 138-144.
Van Oosten, F. F.W. (1990). The insanity defence : its place and role in criminal law. South
African Journal of Criminal Justice, 3(1), 1-9.
Van Oosten, F. F.W. (1993). Non-pathological criminal incapacity versus pathological
criminal incapacity. South African Journal of Criminal Justice, 6(2), 127-147.
Van Rensburg, P. and Verschoor, T. (1989) Medies-geregtelike aspekte van amnesie.
Tydskrif vir Regswetenskap,14(2), 40-54.
Zabow, T. (1990). Conditions other than mental illness or mental disorder in ‘criminal’ and
‘diminished responsibility’ (the meaning of psychiatric disorder in criminal responsibility).
Psychiatric Insight, 7 (1), 4-5.