Heavy Use Of Intoxicating Liquor and Legal Capacity to Commit Crimes

The south African Supreme Court of Appeal on 17 September states that: “The well-established general principle of our criminal law is entrenched in the maxim actus non facit reum, nisi mens sit rea: an act does not render a person criminally liable unless accompanied by the requisite fault. The form of fault (mens rea) required for criminal liability encompasses both intent (dolus) and negligence (culpa). Where an accused genuinely does not know or foresee the possibility that his or her conduct is unlawful, then he or she cannot be held to have the required guilty mind in the form of intention.

” It is common for an accused person to plead that due to the excessive use of intoxicating liquor he/she is unable to recollect the circumstances under which he/she committed an offence or, more seriously, to plead that he/she had consumed intoxicating liquor so heavily he/she did not know what he/she was doing at the time of the commission of the alleged crime. Lord Denning once provocatively stated: “If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. ” On the other hand, the Supreme Court of Namibia also opined that the common law position as stated in the case of Johnson v The State in 1969 on the defence of criminal incapacity based on voluntary intoxication militated against the entrenched presumption of innocence. It emphasised that the requirements of criminal liability are that a person charged with a criminal offence should have the requisite criminal capacity at the time he committed the offence, i. e. , the capacity to distinguish between right and wrong, viz, to consciously realise that he/she…