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I really don't understand the difference between eventualis and negligence. I don't know enough about it but it basically sounds like the same thing to me [emoji53]
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Thank you for that. The problem I have with Masipa over this issue is that she contradicts herself as soon as she starts speaking about CH where she clearly states that he must have known he was likely to have killed someone. How on earth can he not foresee killing someone when pumping 4 bullets into a small cubicle, which then precludes him from a verdict of dolus eventualis, and yet needs to be aware of the risk of doing so to meet the criteria for Masipa to find him guilty of CH. (I know we haven't quite got there yet but that looks like where we are going). Doesn't stack up to me.
In respect of foreseeing the possibility for dolus eventualis the test is subjective not objective. This is the point about which some are claiming Masipa made a mistake in law. That of course will be seen since the State must appeal if they consider that she did but IMHO in view of the precedents she quoted to demonstrate her reasoning and what is explained here, it does not look to be the case to me.Dolus eventualis (Excerpt courtesy of Wikipedia)
On Snyman’s definition, there are two requirements for existence of dolus eventualis:
- that the accused should subjectively foresee the possibility that, in striving towards his main aim, the unlawful act or result may ensue; and
- that he should reconcile himself to this possibility, or at least be reckless as to the possibility.
The first may be described as the cognitive part of the test; the second is the conative or volitional part.
Foreseeing the possibility (Excerpt courtesy of Wikipedia)
The subjective test takes account only of the state of mind of the accused, the issue being whether the accused himself foresaw the consequences of his act. The test may be satisfied by inferential reasoning: that is to say, if it can be reasoned that, in the particular circumstances, the accused “ought to have foreseen” the consequences, and thus “must have foreseen,” and therefore, by inference, “did foresee” them.
In S v Sigwahla, Holmes JA expressed the degree of proof in the following terms:
Subjective foresight, like any other factual issue, may be proved by inference. To constitute proof beyond reasonable doubt the inference must be the only one which can reasonably be drawn. It cannot be so drawn if there is a reasonable possibility that subjectively the accused did not foresee, even if he ought reasonably to have done so, and even if he probably did do so.
The inference, then, must be the only one that can reasonably be drawn from the proved facts.
Spending this amount of judgement time talking about Fresco is completely ridiculous after little amount of length of time the Judge spent on Pistorius many parts of untruthful evidence. Even if she's going to grant him indemnity, it just makes a mockery of the justice sytem not being 'just' but about legalese minutae that is generally irrelvant in the terrible death of a victim.
From @MandyWiener Myers girls - Reeva Steenkamp's friends - are crying incredulously as Judge Masipa agrees with #OscarPistorius's version
Mandy Wiener @MandyWiener · 30s
#OscarTrial Barry and June Steenkamp have shown little emotion though. Barry has gone slightly redder, June sighs deeply. Dup takes notes.
The parents have stated to journalists they are dissappointed (so far)