An analysis of psychological and legal conceptions of the defence of non-pathological criminal incapacity

Master Thesis


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University of Cape Town

The defence of non-pathological capacity presents challenges for both law and psychology because it acknowledges that psychological factors other than mental illness, are grounds for complete exculpation. In this sense, South African law differs from its Anglo-American counterparts as it recognises that non-pathological factors playa role in negating criminal responsibility. Legal and mental health professionals are instrumental in the application of the defence, but both case law and literature reflect differences in the way in which the defence is understood and applied. Disagreement within and between disciplines adds to the controversial nature of the defence. This study examines the interpretation and practical application of the defence by mental health professionals and lawyers. It explores how participants' understanding of the defence informs its application in practice. A sample of ten participants including mental health professionals (comprising psychologists and psychiatrists) and lawyers (comprising advocates) was chosen, in order that a comparison be drawn between the two groups. Semi-structured interviews were conducted so as to enable in-depth exploration of issues regarding conceptions of criminal responsibility, the role of expert testimony and the conceptual understanding and application of the defence.

Bibliography: leaves 59-62.