Pistorius’s Third Defence: Pathological Incapacity (“Insanity”)

South African Criminal Law

In the conduct of Pistorius’s defence, through the testimony of Dr Vorster, the criminal capacity of Pistorius has been placed in issue. Criminal capacity, together with the requirement that your conduct must be voluntary, are the bases upon which our law enquires whether you are a responsible person – whether it makes any sense to hold you criminally liable in law and to punish you. We take it that it would not be sensible to punish, for instance, rocks and trees. It wouldn’t make much sense, if the limb of a tree fell on you, to charge the tree with assault. In our law capacity requires that a person must possess the two abilities: 1) to appreciate the wrongfulness of his or her conduct (referred to as “insight”); 2) to act in accordance with that appreciation (referred to as “self-control”).
In our law, one may lack capacity because of mental…

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