Pathological vs non-pathological incapacity: are the differences in requirements and consequences justified?
| dc.contributor.advisor | Omar, Jameelah | |
| dc.contributor.author | Mazhude, Mandifadza Kurirai | |
| dc.date.accessioned | 2022-03-01T16:15:39Z | |
| dc.date.available | 2022-03-01T16:15:39Z | |
| dc.date.issued | 2021 | |
| dc.date.updated | 2022-03-01T16:15:05Z | |
| dc.description.abstract | This paper covers the criminal law defences of pathological incapacity and non-pathological incapacity in South African law which are used by defendants in criminal cases to refute the element of capacity that is necessary for the court to hold the accused criminally liable. Each defence has its own set of requirements and the result of successfully raising each defence also differs. The aim of this paper is to compare these different requirements and resultant punishments to determine whether those differences are justified in order to ascertain whether it is necessary to have these different requirements or whether it would be more reasonable to have a single set of requirements applying to both considering that both defences give the accused the potential to avoid being held fully accountable for their criminal conduct. Previous work has, primarily, focused on whether the defences in general are justifiable rather than looking at whether the specific contents of the defences, particularly the requirements necessary to raise the defences, are justifiable. To address this gap, this paper shall explore and compare the requirements and principles adopted when these defences are raised, particularly where the burden of proof lies; whether expert evidence is required or not; the tests for each defence; the subjective versus objective approach to capacity and, ultimately, the consequences of a successful defence in either situation. A comparison between the South African formulation of these defences and the Canadian version of these defences is used to discover elements of the Canadian defences that may improve the South African formulations. These comparisons show that there is justification in having different requirements, however, there is room for a consolidation of some of the requirements and consequences to streamline and lend credibility to the defences. | |
| dc.identifier.apacitation | Mazhude, M. K. (2021). <i>Pathological vs non-pathological incapacity: are the differences in requirements and consequences justified?</i>. (). ,Faculty of Law ,Department of Private Law. Retrieved from http://hdl.handle.net/11427/35868 | en_ZA |
| dc.identifier.chicagocitation | Mazhude, Mandifadza Kurirai. <i>"Pathological vs non-pathological incapacity: are the differences in requirements and consequences justified?."</i> ., ,Faculty of Law ,Department of Private Law, 2021. http://hdl.handle.net/11427/35868 | en_ZA |
| dc.identifier.citation | Mazhude, M.K. 2021. Pathological vs non-pathological incapacity: are the differences in requirements and consequences justified?. . ,Faculty of Law ,Department of Private Law. http://hdl.handle.net/11427/35868 | en_ZA |
| dc.identifier.ris | TY - Master Thesis AU - Mazhude, Mandifadza Kurirai AB - This paper covers the criminal law defences of pathological incapacity and non-pathological incapacity in South African law which are used by defendants in criminal cases to refute the element of capacity that is necessary for the court to hold the accused criminally liable. Each defence has its own set of requirements and the result of successfully raising each defence also differs. The aim of this paper is to compare these different requirements and resultant punishments to determine whether those differences are justified in order to ascertain whether it is necessary to have these different requirements or whether it would be more reasonable to have a single set of requirements applying to both considering that both defences give the accused the potential to avoid being held fully accountable for their criminal conduct. Previous work has, primarily, focused on whether the defences in general are justifiable rather than looking at whether the specific contents of the defences, particularly the requirements necessary to raise the defences, are justifiable. To address this gap, this paper shall explore and compare the requirements and principles adopted when these defences are raised, particularly where the burden of proof lies; whether expert evidence is required or not; the tests for each defence; the subjective versus objective approach to capacity and, ultimately, the consequences of a successful defence in either situation. A comparison between the South African formulation of these defences and the Canadian version of these defences is used to discover elements of the Canadian defences that may improve the South African formulations. These comparisons show that there is justification in having different requirements, however, there is room for a consolidation of some of the requirements and consequences to streamline and lend credibility to the defences. DA - 2021 DB - OpenUCT DP - University of Cape Town KW - private law LK - https://open.uct.ac.za PY - 2021 T1 - Pathological vs non-pathological incapacity: are the differences in requirements and consequences justified? TI - Pathological vs non-pathological incapacity: are the differences in requirements and consequences justified? UR - http://hdl.handle.net/11427/35868 ER - | en_ZA |
| dc.identifier.uri | http://hdl.handle.net/11427/35868 | |
| dc.identifier.vancouvercitation | Mazhude MK. Pathological vs non-pathological incapacity: are the differences in requirements and consequences justified?. []. ,Faculty of Law ,Department of Private Law, 2021 [cited yyyy month dd]. Available from: http://hdl.handle.net/11427/35868 | en_ZA |
| dc.language.rfc3066 | eng | |
| dc.publisher.department | Department of Private Law | |
| dc.publisher.faculty | Faculty of Law | |
| dc.subject | private law | |
| dc.title | Pathological vs non-pathological incapacity: are the differences in requirements and consequences justified? | |
| dc.type | Master Thesis | |
| dc.type.qualificationlevel | Masters | |
| dc.type.qualificationlevel | LLM |