oa Fundamina : A Journal of Legal History - Tracing the origins of the defence of non-pathological incapacity in South African criminal law



The controversial defence to criminal liability of non-pathological incapacity has developed in the last thirty years, through case law. However, the origin of the defence in South African law can be traced to the report of a commission of inquiry, which was influenced by the work of the South African criminal law academic JC de Wet. Both the commission of inquiry - the"Report of the Commission of Inquiry into the Responsibility of Mentally Deranged Persons and Related Matters" (RP 69/1967) - and De Wet rely in crucial respects on the work of the Dutch psychiatrist Wiersma. This article places the development of the South African criminal law in its historical context, before examining the unusual manner in which the defence of non-pathological incapacity has developed, with particular reference to the application of the defence to the issue of provocation. In conclusion, the most recent case law is placed in the context of the origins of the defence.


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