Sharpening the subjective element of criminal liability in South African law

South African criminal law holds to a conception of human beings as morally autonomous. Autonomy of the self, which is closely associated with the right to dignity, assumes the basic ability to appreciate reality and distinguish right from wrong, along with the competency to decide how to act, the capability to realise that decision, the internalising of the fundamental values of the legal system, and a basic commitment to those values by every competent person. Thus, the individual is the foundation of society and law, and must not be treated as an object or instrument. The right to dignity is limited by a guilty verdict, given the punitive and stigmatising consequences that follow. But a guilty verdict equally resonates with the right to dignity by treating the offender as a responsible human agent.

The basis for a guilty verdict is blameworthiness. The infringement of the right to dignity that follows conviction is unjustifiable, unless the finding of liability is based on the offender’s control and choice. It follows, then, that the subjective element of criminal liability is crucial in the just assessment of criminal responsibility. Despite an earlier reliance on objective notions, the pioneering work of JC de Wet saw the South African law develop into a system of criminal responsibility based on a subjective, principled approach to liability, also known as the “psychological approach”. The justifications for, operation of, and opportunities for further refinement of this vital feature of substantive South African criminal law form the fabric of this lecture.

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Short biography

Prof Shannon Hoctor holds BA LLB and LLM degrees from the University of Cape Town (UCT), a DJuris from Leiden University (Netherlands), as well as a Postgraduate Diploma in Latin from the University of Wales Trinity Saint David (United Kingdom). Having begun his academic journey at UCT, he taught at the erstwhile University of Port Elizabeth and the University of KwaZulu-Natal in Pietermaritzburg before being appointed as a professor in the Department of Public Law at Stellenbosch University in July 2021. Prof Hoctor has published numerous journal articles and book chapters and authored thirteen books, including five edited works, primarily in criminal and road traffic law. He has served as editor-in-chief of the South African Journal of Criminal Justice since 2010, of Fundamina – A Journal of Legal History since 2019, and as assistant editor of Obiter since 2002. Prof Hoctor has also been the president of the Southern African Society of Legal Historians since 2017.

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