ABSTRACT
South African criminal law – under the infl uence of English law 1 as well as Roman-Dutch authorities and German commentaries 2 – recognises consent as a defence 3 or as a ground of justifi cation. 4
On the understanding that human beings are essentially autonomous, and able to freely waive legal rights if they so choose, the logical conclusion must be that consent to harm serves as an excuse: volenti non fit iniuria . This is, with some qualification, true in private law. 5 The question is whether such a liberal view of individual autonomy holds true for defences/justifications in criminal law as well. It appears that, while the law of delict and criminal law share the same basic point of departure, criminal law includes broader considerations beyond individual consent. These considerations can collectively be labelled as public interest considerations; and public interest here plays a more significant role than in the law of delict. 6
Given the public interest in the harm done by unlawful acts in criminal law, the question is whether consent is relevant at all. Does public interest totally override individual autonomy? Relying on English law, and with reference to the authors Simester and Sullivan, Burchell noted that there are three basic scenarios in criminal law where consent comes into play: first, there are clear cases where it can be said that freely given and sufficiently informed consent
irrelevant. Thirdly, there are grey areas where the lack of guiding principles is exposed.
