What are the requirments of consent?
- The consent in the circumstances must be recognised by law as a possible defence (Stoffberg, Njikelena, Sikunyana, Agliotti, Stransham, Clarke & Brown)
- It must be real consent (Mccoy, Collett, Scottberg)
- It must be given by a person capable of consenting. (Brown)
What are the requirements for successfully relying on consent as a defence?
- The crime and the type of act in question must be of such a nature that the law recognises consent to the commission of such an act as a ground of justification
- The consent must be given voluntarily, without coercion
- The person giving the consent must be mentally capable of giving consent
- The consenting person must be aware of the true and material facts regarding the act to which she consents
- The consent may be given either expressly or tacitly
- The consent must be given before the otherwise unlawful act is committed
- In principle, consent must be given by the complainant herself
How do you determine if an actions is unlawful?
To determine if an action is unlawful, we will consider the community’s perceptions of justice or public policy. (S v Sikunyana 1961 (3) SA 549 (E))
CAn a medical doctor be charged with assult?
A medical doctor cannot be charged with assaulting a patient upon whom she performs an operation is the patient’s consent to the operation (S v Sikunyana 1961 (3) SA 549 (E))
CAn a person consent to mutal sucide?
Our courts have also confirmed that one cannot consent to being killed in the context
of a mutual suicide pact (Peverett).
What was held in Nyallungu?
In Nyalungu the high court held that, where a person has non-consensual sexual intercourse with a woman knowing that he is HIV-positive, and fails to inform her of this fact, he is guilty of rape and attempted murder
What is the difference between assisted suicide and euthanasia?
Assisted suicide is where a person requests someone else to kill them for any reason (Agliotti) whilst euthanasia is where a terminally ill patient asks a medical practitioner to help them to die with dignity (Stransham). Providing the means for someone else to commit suicide is also illegal (Grotjohn).
When does our law permit consent to being killed?
Permit consent to being killed in the context of passive
euthanasia which requires an omission in circumstances where there is a living will
indicating that the person wished not to be kept alive artificially. (Clarke v Hurst)
What is held in Stoffberg?
Stoffberg v Elliot 1923 CPD 148 = informed consent is required to negate wrongfulness for doctors.
What was held in Njikelena?/
S v Njikelena 1925 EDL 204 = Consent towards assault towards your own self makes the assault lawful, taking into account that there was knowledge of the consequences
Whar was held in Mcoy?
R v McCoy 1953 (2) SA 4 (SR) = Consent is not valid if it was not given freely but under duress or fear and if it was received with malicious intent
What was held in Sikunyana?
S v Sikunyana 1961 (3) SA 549 (E) = consent is not a ground of justification of the assault, if the accused knew that the actions would cause serious bodily harm and acted recklessly or indifferent to whether this happens or not
What was held in Collet?
S v Collett 1978 (3) SA 206 (RA) = Consent can only be raised as a defence if public policy would permit it
What was held in Clarke?
Clarke v Hurst NO 1992 (4) SA 630 (D) = It is not wrongful to withhold medical treatment (omission) from a person who is brain dead
What was held in Brown?
R v Brown [1993] 2 All ER 75 = consent cannot be used to mitigate fault if the assault leads to serious bodily injury
What was held in Agliotti?
S v Agliotti 2011 (2) SACR 437 (GSJ) = Assisted suicide by individuals is unlawful
