DOLUS EVENTUALIS

DEFINITION
Accused doesn’t mean to commit unlawful conduct or create unlawful consequence
but foresees the possibility of it occurring in substantially the same manner that it
actually does occur, and proceeds with that conduct in spite of what is foreseen (ie
reckless as regards this possibility).

Coetzee: CC recognized and accepted that dolus eventualis is sufficient to establish

intention

ELEMENTS
i) Foresight
ii) Possibility
iii) Correlation: foreseen consequence and the actual consequence
iv) Recklessness

i) Foresight

Relates to circumstances or consequences, which the actor does not plan or desire,
but which, in light of human experience, can be expected to follow if actor proceeds
with planned course of action.

Subjective Test:
Prior to 1950, South African law employed a more objective measure of dolus –
would a reasonable person have foreseen the consequence or circumstance.
Nsele: AD adopted a subjective test of intention
i.e whether the accused himself foresaw the consequence or circumstance occurring
(takes into account only the state of mind of the accused)

Subjective Test may be satisfied by inferential reasoning:

BUT in some circumstances, do ask whether an accused ought to have foreseen and
therefore must have foreseen and therefore did foresee = inferential reasoning
Chain of questioning where objective factors used to establish whether it is possible
to subjectively foresee or not

Sigwahla: Holmes JA at para 570

Inference must be the only one that can be drawn, cannot be a reasonable possibility
that subjectively the accused did not foresee, even if ought reasonably to have done
so, and even if he probably did so.
i.e. standard of beyond a reasonable doubt must still be satisfied
Inference must be the only conclusion that can be reasonably drawn from the proven
facts

ii) Possibility
To what extent, should the probability of something occurring affect whether we
consider the accused to have foreseen it?
Probability vs possibility - what level of certainty is required for dolus eventualis?
i.e. if something is not very probable, unlikely that using inferential reasoning, a court
will find that the accused ought to have foreseen it and therefore did foresee it.
(Therefore mostly relevant where conducting inferential reasoning)

Horn
Realisation of the possibility of the consequence is sufficient for dolus depending on
facts (i.e. it does not have to be a probability or an inevitability)

Even if there is a small chance, accused should not be able to escape liability where
there was a risk of it occurring and knowledge of this risk
Cannot be a remote possibility, must be a real, substantial or reasonable possibility
(Van Wyk, Dlamini & Makgotho)

iii) Correlation
Between foreseen manner of consequence occurring and the actual manner of the
consequence occurring

Different theories about how close the connection needs to be:

De Wet: if consequence desired or foreseen, the actual way in which it occurred is

irrelevant (appears to be conflating dolus directus and dolus eventualis)

Burchell & Snyman: if consequence foreseen as a real possibility, causal sequence

of its occurring irrelevant
i.e. accused does not have to foresee the precise, or even the general manner in which
consequence occurs

Snyman:
Definition of intention does not include or require knowledge of the precise
time and manner in which result brought about
i.e. a mistake as to causal sequence not material to criminal liability
Courts have not given any guidance or explanation on how to factually
decide/determine if there is a material difference between foreseen manner of
occurrence and actual manner of occurrence
Only test given by courts, is if actual consequence falls outside of human experience
i.e. something abnormal happened – actual event deviated from events expected to
flow from type of act committed by accused according to human experience

Causation vs Mens Rea:

Professor Burchell’s (Textbook) critique of Snyman:

Question of abnormal event intervening is already covered by element of causation
i.e. novus actus interveniens assessment, therefore not necessary to deal with this
under dolus eventualis in mens rea

Snyman conflates test for materiality of mistake regarding causal sequence

(intention) with test for a novus actus interveniens (causation)
Causation: did conduct itself cause the unlawful consequence?
Mens rea: did the unlawful consequence happen in materially the same way that was
foreseen by the accused?
Different tests but essentially the same factual enquiry

But some situations where these questions not asked under causation leg therefore
Snyman maintains this is useful to keep in the test for dolus eventualis i.e. common
purpose.

Common Purpose: Imputing causation

Even though only one main perpetrator, can the unlawful conduct be imputed onto the
co-perpetrators to find them guilty of the same offence?
Unlawful conduct and causation not required for each individual perpetrator.
(therefore no opportunity to ask whether there has been novus actus interveniens
under causation enquiry for co-perpetrators, may be able to limit liability through the
enquiry of dolus eventualis)

Goosen:
FACTS: Robbery that lead to murder in which the accused had taken part
Robbers followed man when he left work in his car, confronted him at a stop street
One of robbers was holding a hand carbine (long arm rifle with a shorter barrel than
an ordinary rifle) – device hand made so very unstable and volatile
Car was automatic, moved forward accidently while victim was being beaten by the
robber, robber got a fright and discharged the device, deceased shot fatally and died

Trial Court:
Robber said he pulled trigger accidently or involuntarily as a result of the fright
caused by the car moving forward
Court accepted that trigger may have been pulled involuntarily, convicted of culpable
homicide (negligence) and not murder (intention)
The accused (another robber who had not carried the hand carbine nor struck the
deceased) plead guilty to murder, was found guilty on basis that he foresaw the
possibility of a struggle ensuing and the victim being shot

Appeal:
Found that the accused may have foreseen the possibility of the gun being discharged
intentionally, but did not foresee the possibility of it being discharged involuntarily.
(Had not been proven that accused foresaw possibility of gun being involuntarily
discharged as the accused was of low intelligence and had failed standard 6)

Causing of death by intentional conduct (conduct that was foreseen) was markedly
different from causing death by involuntary conduct (conduct that actually occurred)
Set aside murder conviction of the accused and replaced with culpable homicide
i.e. even though the accused had not foreseen this possibility, a reasonable person
would have foreseen possibility of death resulting from involuntarily conduct
Majority judgment (Van Heerden JA):
In circumstances of dolus directus, where aim and object to bring about death of
deceased, a general mistake as to causation i.e. a difference between the actual and
foreseen manner of consequence occurring may be irrelevant on the facts
(i.e. Rumpff JA in Masilela and Jansen JA in Daniels)

RATIO:
Intention element (in consequence crimes) not satisfied if consequence occurs in a
way that differs markedly from way in which accused foresaw causal sequence.
For finding of dolus eventualis, must be substantial (not precise) correlation between
foreseen way in which consequence might have occurred and actual way that it did
occur i.e only general manner must be foreseen, not precise manner
Therefore accused’s foresight of harm must not differ markedly from the way it
actually occurs. Differ markedly to be determined by courts on a case-by-case
basis.

iv) Recklessness (Volitional enquiry)

i.e. “consenting to the materialization of the possibility”, “reconciling himself or
herself to it”, “accepting possibility into the bargain”

Ngubane: defined recklessness as accepting the foreseen possibility into the bargain
Persists with conduct despite foreseeing consequence as a real or concrete possibility
Can be inferred that accused reconciled himself to the consequence

Humphreys:
FACTS: Taxi driver overtook two cars at a railway crossing, went over the railway at
a level crossing against warning red lights, a stop sign and lowered boom.
The minibus collided with oncoming train. Driver was only injured but 9 children
passengers were killed

Trial Court:
Convicted of ten counts of murder, four counts of attempted murder.

Appeal:
Agreed that accused had foreseen the death of the passengers as a possibility (by
process of inferential reasoning) BUT found that it had not been established that he
had reconciled himself with this foreseen possibility
But how to explain the fact that he proceeded with the conduct nonetheless?
Court held that the inference that the accused may have thought that the collision
may not actually occur, was reasonable and most probable inference.
Based on two primary considerations:
- No evidence that the accused reconciled himself to the possibility of his own death
or death of passengers as he genuinely thought that it would not happen
(even though saw possibility)
- Evidence that he had successfully performed this maneuver in virtually same
circumstances previously i.e. done this so many times without anything happening
before therefore did not foresee it as an actual risk (would jump queue at boom gate at
railway line everyday and had never been hit by a train)
Court convinced of these arguments, as there was no evidence that he had reconciled
himself to his own death – to foresee the death of the passengers, must include his
own death in the foreseeability (supports accused’s version)
Conclusion: Negligence and not dolus eventualis established, therefore convicted of
culpable homicide and not murder

Beukes:
From mere fact that the accused acted, could be inferred that he reconciled himself to
the fact (but only where result foreseen as a reasonable possibility)

Maritz (Police brutality case, suspect tied to police van and forced to run in front)
A person does not accept a foreseen risk into the bargain when he is convinced that
he can prevent it from occurring
(but is this not perhaps the foresight leg rather than the volitional element?)
Accused cannot be held to have requisite intention to cause result merely because ex
post facto its occurrence proves him wrong.

Humphreys is an SCA case and so is a binding precedent.

Therefore recklessness now forms part of the dolus eventualis test
(But case has been criticized for focusing improperly on recklessness test, whereas
what the court was actually considering was the foreseeability of the possibility)

Primary part of dolus eventualis: foreseeability and possibility legs