One night, after finishing their first-year law examinations, David, Jason, Bobby and a few other friends visited the local pub to celebrate. After a while, Jason receives a message and excuses himself. David finishes his beer a shot and the decides to go to the bathroom. On his way back from the bathroom, he sees Jason in the parking area, making out with David's ex-girlfriend, Rebecca. Furious, David goes back to the table and orders four rounds of Jgermeister each for him and Bobby. After downing all the Jgermeister, David tells Bobby what he saw. He then starts threatening that he will beat Jason to a pulp. Bobby tries to calm David down, reminding him that Rebecca broke up with him before the exams and that she is free to date whoever she wants. David calms down, but since the event put a damper on the celebrations, Bobby offers to drive David home. Bobby drops David at home and leaves. After being dropped at home, David waits for Bobby to leave, then gets on his motorcycle and drives over to the bar. He sees Jason's car in the parking area with the light on and Jason and Rebecca making out the in car. He grabs a rock, smashes the window and starts beating Jason with the rock. After a few hits to Jason's head, he gets back on his bike and goes home. The next morning, the police arrive at David's house, informs him that Jason died on the scene and then proceeded to arrest him for Jason's murder. David is subsequently charged with murder. He claims, however, that he is not liable for the crime that he is being accused of, due to non- pathological criminal incapacity. Critically discuss the defense of non- pathological criminal incapacity as a result of intoxication. Provide an opinion on whether you think this defense can be raised successfully under the circumstances.

NB: please only use Namibian and South African case law.