With what has happened with the verdict, I think it is interesting to look back at the Defence Heads of Argument at the section regarding Dolus Eventualis: Page 200 -210:
https://juror13lw.files.wordpress.com/2014/08/defense-heads-of-argument.pdf
DOLUS EVENTUALIS
685. The question is whether the Accused acted with dolus eventualis or legal intent in relation to the death of the Deceased.
686. In
S v Humphreys the Supreme Court of Appeal (SCA) confirmed the test for dolus eventualis to be :
“(a) Did the appellant subjectively foresee the possibility of the death (of his passengers) ensuing from his conduct; and
(b) did he reconcile himself with that possibility (see eg S v De Oliveira 1993 (2) SACR 59 (A) at 65i – j)?”
687. In
Humphreys the SCA dealt with the first leg of dolus eventualis as follows:
“[13] For the first component of dolus eventualis it is not enough that the appellant should (objectively) have foreseen the possibility of fatal injuries to his passengers as a consequence of his conduct, because the fictitious reasonable person in his position would have foreseen those consequences. That would constitute negligence and not dolus in any form. One should also avoid the flawed process of deductive reasoning that, because the appellant should have foreseen the consequences, it can be concluded that he did. That would conflate the different tests for dolus and negligence.”
(Emphasis added)
[15] This brings me to the second element of dolus eventualis, namely that of reconciliation with the foreseen possibility. The import of this element was explained by Jansen JA in S v Ngubane 1985 (3) SA 677 (A) at 685A – H in the following way:
'A man may foresee the possibility of harm and yet be negligent in respect of that harm ensuing, eg by unreasonably underestimating the degree of possibility or unreasonably failing to take steps to avoid that possibility. . . . The concept of conscious (advertent) negligence (luxuria) is well known on the Continent and has in recent times often been discussed by our writers. . . .
Conscious negligence is not to be equated with dolus eventualis. The distinguishing feature of dolus eventualis is the volitional component: the agent (the perpetrator) consents to the consequence foreseen as a possibility, he reconciles himself to it, he takes it into the bargain. . . . Our cases often speak of the agent being reckless of that consequence, but in this context it means consenting, reconciling or taking into the bargain . . . and not the recklessness of the Anglo American systems nor an aggravated degree of negligence. It is the particular, subjective, volitional mental state in regard to the foreseen possibility which characterises dolus eventualis and which is absent in luxuria.'
[16] The question is, therefore, whether it had been established that the appellant reconciled himself with the consequences of his conduct which he subjectively foresaw. The court a quo held that he did. But I have difficulty with this finding. It seems to me that the court a quo had been influenced by the confusion in terminology against which Jansen JA sounded a note of caution in Ngubane. That much appears from the way in which the court formulated its finding on this aspect, namely — freely translated from Afrikaans — that the appellant, 'appreciating the possibility of the consequences nonetheless proceeded with his conduct, reckless as to these consequences'.
[17] Once the second element of dolus eventualis is misunderstood as the equivalent of recklessness in the sense of aggravated negligence, a finding that this element had been established on the facts of this case seems inevitable. By all accounts the appellant was clearly reckless in the extreme. But, as Jansen JA explained, this is not what the second element entails. The true enquiry under this rubric is whether the appellant took the consequences that he foresaw into the bargain; whether it can be inferred that it was immaterial to him whether these consequences would flow from his actions. Conversely stated, the principle is that if it can reasonably be inferred that the appellant may have thought that the possible collision he subjectively foresaw would not actually occur, the second element of dolus eventualis would not have been established.”
688. In
S v Tonkin, the SCA confirmed that the second leg of dolus eventualis, that the accused must have reconciled himself with the foreseen possibility, was again referred to. The SCA reiterated that the second leg is also a subjective application of the Accused reconciling himself. The SCA said the following in this regard:
“[11] This statement, as I see it, potentially exposes the magistrate to the criticism that, despite his express reference to the element of reconciliation as an essential ingredient of dolus eventualis, he never actually enquired into the presence of that element at all. In consequence, he fell into the trap against which this court recently reiterated a note of warning in S v Humphreys 2013 (2) SACR 1 (SCA) paras 15 – 17. Reconciliation, so this court emphasised in Humphreys, involves more than the perpetrator merely proceeding with his or her proposed conduct, despite the subjective appreciation of the consequences that ensue. If the perpetrator genuinely believed — despite the unreasonableness of that belief — that the foreseen consequences would not materialise, the element of reconciliation cannot be said to be present. The form of fault in this instance would be luxuria or conscious negligence, but not dolus eventualis (see eg S v Ngubane 1985 (3) SA 677 (A) at 685A – H).”
689. In
S v Ngema,the Court stated:
“In modern South African criminal law it is accepted as axiomatic that before intention can exist there must be a subjective intention to commit the offence concerned.”
690. Therefore the question is:
690.1 Did the Accused subjectively foresee that it could be the Deceased in the toilet; and
690.2 Notwithstanding, did he then fire the shots, thereby reconciling himself to the possibility that it could be the Deceased in the toilet.
691. Clearly, the facts show that the Accused believed that the Deceased was in the bedroom. He had in fact told her to phone the police and when he was at the bathroom door he shouted for her to call the police.
692. Immediately after the shooting he was looking for the Deceased in the bedroom. It was only then that he realised the Deceased might have been in the toilet.
693. His (subjective) belief that the Deceased was in the bedroom and an intruder(s) in the toilet, is further supported by his spontaneous disclosure, very soon after the shooting, that he thought it was an intruder (see the call to Johan Stander at 03:19 and the disclosure to Carice Viljoen (+/- 03:22), Dr Stipp at +/- 03:25 and the Police at +/- 04:00.
694. His version at the bail application (before he had access to the police docket, and before he was privy to the evidence on behalf of the State at the bail application), was consistent with his belief that the Deceased was in the bedroom and an intruder(s) in the toilet.
695. It did not assist the State to put to the Accused in cross-examination that it could have been anyone in the toilet, as in the context of the case, that
“anyone”, in the Accused’s mind, could not and did not include the Deceased, as his version remained unaffected that he thought the Deceased was in the bedroom.
696. Significantly, the State at no stage asked him if he would have discharged the firearm, if he thought it could possibly have been the Deceased in the toilet, as the State knew that the answer could only have been a resounding no.
697. Therefore, in applying the test of dolus eventualis, it could never ever be suggested that the Accused foresaw the possibility and reconciled himself with the possibility that the Deceased could have been in the toilet.
698. The failure to foresee and/or the failure to reconcile one with the foreseen possibility may, depending on all the facts, give rise to a possible conviction of culpable homicide, which we will deal with below.
Error in persona
699. In the summary of substantial facts in terms of Section 144(3)(a) of the CPA, the State contended:
“The accused said to witnesses on the scene that he thought she was an intruder. Even then, the accused shot with the direct intention to kill a person. An error in persona, will not affect, the intention to kill a human being.”
700.
“Error in persona” (mistake about the identity of the person) only finds application where an accused intended to kill the identified
“specific predetermined individual” but made a mistake as to the identity of that individual. His mistake will not constitute a defence.
701. “Error in persona” does not apply to the present case. Rather, what the State seeks to do is to introduce the doctrine of transferred intent/malice, which does not form part of our law. We deal with the doctrine of transferred malice/intent below.
702. We illustrate the above, with reference to three examples:
Example 1
702.1 The mother of a three year old little girl, her only child, heard a noise in the house early one morning. Her husband was away on business. She was a victim of a house robbery about 6 months before.
702.2 She armed herself with her licensed firearm and walked to the front of the house to determine the cause of the noise.
702.3 Her little girl, who slept in the room next door, woke up and went to her mother’s bedroom. She closed the door behind her.
702.4 The mother heard the main bedroom door closing and feared that an intruder had entered her bedroom. She believed her daughter was still asleep in her own bedroom.
702.5 She heard a noise inside the main bedroom and feared that the intruder was coming out to harm them. It had previously happened to her in the house robbery.
702.6 She fired a shot into the door. Unbeknown to her, her daughter stood behind the door. The shot fatally wounded her daughter.
703. On the State’s reliance on error in persona, the mother is guilty of intentionally murdering her daughter as she wanted to kill the intruder or foresaw and reconciled herself that the intruder could be killed. According to the State, it is irrelevant that she definitely did not have the intention to kill her daughter and that she did not foresee or reconcile herself that her daughter was in the bedroom.
704. It offends against legal principles, our legal conviction and common sense, that in the absence of intent to kill her daughter, the mother must be convicted of murdering her daughter. (Her possible negligence is irrelevant in considering intention for purposes of murder.)
Example 2
705. X wanted to kill Y. X knew that Y frequented a certain club at about 18:00 every Saturday. X armed himself and went to the club. He saw a person approaching the entrance door to the club. He mistakenly identified the person as Y. However it was not Y but Z. He fired the shot with the intention to kill the person he had identified as Y. The shot is fatal.
706. He is charged with the murder of Z.
707. In the second example X’s intention was directed at the very person he mistakenly identified and aimed at. He was also charged with the murder of that very person.
708. It does not offend the legal or moral conviction that he be convicted of murder as he had the intention to kill the very person he had mistakenly identified and shot at.
709. It is for exactly this reason that Professor Burchell27 makes it clear that error in persona applies only when the intention is directed at an identified, specific predetermined individual.
710. Professor Milton confirms the views expressed above by stating that the
“intent to kill must relate to the very person killed”.
711. The Accused did not intend (in any form) to kill the Deceased. He did not shoot at the Deceased mistakenly thinking she was the intruder. He did not shoot at the intruder mistakenly thinking he was the Deceased.
712. Consequently, one must be careful to generalise references to error in persona in order to seek to apply it to instances other than where the intention was directed at an identified, specific person or the very person, with whose death he is being charged.
Example 3
713. A intended to kill B, by firing a shot at B. The shot missed B and killed C who was two metres from B (
aberratio ictus scenario). A can only be guilty of the murder of C, if he foresaw the possibility of C’s death when he shot at B, and he reconciled himself with the foreseen possibility. He may be guilty of culpable homicide, if he failed to foresee C’s death or failed to reconcile himself with the foreseen possibility, in circumstances where C’s death was reasonably foreseeable.
714. The Accused:
714.1 did not direct his intention at the Deceased, thinking she was the intruder.
714.2 He had no intention to shoot the Deceased as she was not the specific predetermined individual whom he directed his shooting at.
714.3 He did not foresee the possibility that it could be the Deceased in the toilet, nor did he reconcile himself with such a possibility.
714.4 He did not intend to shoot at the intruder, in the toilet, knowing that the Deceased could be in the toilet, and accepting (reconciling) that his shot could kill the Deceased.
715. What the State is in reality attempting to reintroduce in our law is the doctrine of transferred malice/intent which formed part of our law about 70 years ago.
