What do dolus directus and dolus eventualis mean when applied to OP’s case?
I see misinformation and misconception has spread on this, so I thought it may be helpful to set the record straight in my rough, layman's language before judgement and sentencing proceedings.
- They are both types of intent, intent being a necessary component for murder. In SA law, they are both assessed subjectively - i.e. what was in the accused’s mind - not what he should have thought, but what he did actually think.
- Dolus directus - the accused wanted to unlawfully kill a human being behind the door
- Dolus eventualis - the accused did not want to, but foresaw the possibility that he would, unlawfully kill a human being behind the door
The identity of the human being behind the door is not directly relevant.* If he thought it was an intruder, or if he thought it was Reeva, and whoever it may have turned out to be, all forms of intent, and even pre-meditation are possible. (I have seen it repeated a few times from various sources that dolus directus means he knew it was Reeva, and dolus eventualis means he thought it was an intruder - this isn't the case).
- Imagine he knew it was Reeva. If he wanted to kill her then it is dolus directus. If he wanted to seriously injure her, but foresaw that he may end up killing her, then it is dolus eventualis.
- Imagine he thought it was an intruder and he did not believe he was under attack. If he wanted to kill the intruder, e.g. because he thought intruders deserve it, then it is dolus directus. If he wanted to incapacitate the intruder, e.g. so he couldn't escape before the police arrived, but foresaw that he may kill him, then it is dolus eventualis. The fact it turned out to be Reeva does not change it being murder directus or murder eventualis.
- Imagine he thought it was an intruder and that he thought the door was opening to launch a deadly attack - a case of putative self defence. If he wanted to kill him then it is not murder because the intention was to lawfully kill, not unlawfully kill. If he wanted to incapacitate him or ward him off, but foresaw that he may kill him, then it also is not murder for the same reason. If however, he foresaw the possibility that it may be Reeva, then that means he foresaw the possibility he would be killing the human being behind the door unlawfully, and then that would be murder eventualis. In other words, putative self defence works as a complete defence against murder by virtue of excluding intent to kill unlawfully, and this means excluding any foresight that you may not be under actual attack or that it may be someone innocent.
*The defence do argue against this, but every legal expert I have seen commenting on the trial in SA has flatly rejected this and common sense rejects it too.
Excellent post Pandax !!!
Just a comment on BIB as per how can one's intent to kill unlawfully be subtracted and therefore escape a murder conviction :
Private Defence (PD)
1. The Judge must find that the accused was in a situation where his life was
objectively being
imminently threatened and that a
reasonable person in the same situation would also come to the same conclusion.
2. The Judge must find that the accused had
objectively no other
reasonable means of avoiding, escaping or extracting himself from said life threatening situation.
3. The Judge must find that the accused self-defense response to said threat was
objectively reasonable.
Putative Private Defence (PPD)
1. The Judge must find the accused was in a situation where he perceived his life was
subjectively being
imminently threatened and that a
reasonable person in the same situation would also have perceived an imminent life threatening situation.
2. The Judge must find that the accused had
objectively no other
reasonable means of avoiding, escaping or extracting himself from said life threatening situation.
3. The Judge must find that the accused self-defense response to said threat was
objectively reasonable.
… therefore, applied to OP's case… to succeed in a PPD Defence :
A. OP must convince Masipa he his a credible witness whose version should be believed.
B. OP must convince Masipa the State's evidence which may contradict his PPD version is not credible and/or not reliable.
C. OP must convince Masipa the 3 startles constitute a subjectively reasonable causation to his perception of being in an imminent life-threatening situation and that a reasonable person, in those same circumstances, would have perceived themselves as being in an imminent life-threatening situation.
D. OP must convince Masipa he objectively had no other reasonable means of avoiding that perceived threat and therefore, arming himself and proceeding into the bathroom was the only reasonable option available to him.
E. OP must convince Masipa that firing 4 shots into a closed toilet door was an objectively reasonable response.
… IMO, OP fails miserably on all points : A, B, C, D and E.
