Pathological vs non-pathological incapacity: are the differences in requirements and consequences justified?

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