Topic 3.2

Question 1

What are the three types of fault?

Answer 1

Three types of fault:
- Dolus Directus
- Dolus indirectus
- Dolus Eventualis (DE)

Question 2

What is dolus directus?

Answer 2

Intention in the ordinary, literal sense of the word. The unlawful consequence is the accused’s main aim and objective. This is the direct objective and the highest form of fault

Question 3

What is Dolus indirectus?

Answer 3

Where A does not specifically desire to bring about the unlawful consequence but he nevertheless foresees it happening as a necessary or inevitable consequence. (That is, he foresees the unlawful consequence as certain or virtually certain). No direct intent but knows as a certainty that the unlawful consequence will result

Question 4

What is the reuirments of dolus eventualis?

Answer 4

Dolus Eventualis (DE)- Legal as opposed to literal intention. X foresees the real possibility that the unlawful consequence will occur and acts reckless as to whether it occurs or not. No direct intent but forsesees that the unlawful consequence will occur as a real possibility and does it anyway.

Question 5

What are the three requirmentts of dolus eventualis?

Answer 5

3-pronged enquiry requiring:
- Foresight
- Possibility
- Reconcilation

Question 6

What is held in De Bruyn?

Answer 6

Even though there are 3-types of dolus, for the purposes of criminal liability, proof of dolus eventualis suffices for a conviction of any crime requiring intention. [De Bruyn]

Question 7

Whats the contemporaneity principle?

Answer 7

Fault must always exist contemporaneously with the actus reus (conduct and fault must co-exist at the same time) – this is known as the contemporaneity principle. [Bernardus]

Question 8

What was the facts in R v Kewelram?

Answer 8

In R v Kewelram, the accused set fire to his stock with the objective of making a fraudulent insurance claim knowing that the building in which the stock was kept (not belonging to him) would inevitably catch fire as well. On a charge of arson in respect of the building there is dolus indirectus.

Question 9

What is held in churchill about the second requirment of dolus eventalis?

Answer 9

Fault must extend to each definitional element of the crime in question. [Churchhill]

Question 10

What are the facts with R v Jolly?

Answer 10

In R v Jolly, the accused and a number of others derail a train in protest during industrial unrest. If occupants are injured (or killed), A will be liable for assault or murder because DE is present.

Question 11

What is the defention of murder in S v Mini?

Answer 11

In S v Mini ’63 AD: A person in law intends to kill if he deliberately commits an act which he in fact appreciates might result in the death of another and he acts recklessly as to whether such death results or not.

Question 12

What is the defention of murder in S v Sighwahla?

Answer 12

In S v Sighwahla ’67 AD: It is sufficient if the accused subjectively foresaw the possibility of his act causing death and was reckless of such resul”.

Question 13

What is the subjective forsight test?

Answer 13

The test is purely subjective, it asks whether the accused himself foresaw the consequences of his act.

Question 14

How is inferential reasoning is used to determine what the Acc
foresaw as follows?

Answer 14

• Objective factors available in the form of evidence must be used to make inferences (S v Mini)
• If (based on the factors), the only reasonable inference that can be drawn is that the accused foresaw, then the accused did foresee. (S v Sigwahla)
• The Court must put itself into the shoes of the accused at the time of the commission of the crime and determine what the accuse foresaw.

Question 15

What was the facts in S v Sighwwahla?

Answer 15

In S v Sighwahla, the accused was armed with a long knife which he held in his hand. He advanced upon the deceased who at the time was approaching him as well. As the two men approached one another, the deceased jumped forward and raised his arm which resulted in the accuseds knife penetrating the deceased in the left front of the deceased’s chest about 4 inches injuring the heart.

Question 16

What was held in S v Sighwala?

Answer 16

It was held that nothing in the evidence suggested ignorance or unawareness on the part of the accused, he knew very well the dangers of penetrating someone with a knife in the upper part of their body. The AD confirmed the trial court’s conviction of murder. AD held that it would not draw an inference to kill unless it was the only inference that could be reasonably drawn in the circumstances. On the facts, the only reasonable inference is that the Acc did foresee a fatal stab wound. There was no reasonable possibility that it never occurred to him.

Question 17

What are the facts in S v Mini?

Answer 17

In S v Mini, the accused and the deceased lived in huts in a rural area. The accused stabbed the deceased in the back with a long pointed knife. The depth of the wound was not particularly deep but the deceased was slightly built and died as a result. The parties had an argument wherein the accused threatened to stab the deceased and when the deceased didn’t take him seriously, the accused made good on his threat.

Question 18

What was held in S v Mini?

Answer 18

It was held that the court was divided on whether DE was proved. The minority held that the accused must have foreseen the possibility of death resulting from stabbing a slightly built man in the back of the chest. The majority was not convinced that an ignorant man with little education must necessarily have known that death was a possible result of his action. The murder conviction was set aside and replaced with culpable homicide (a reasonable man in the accused’s position, even in the rural area would have foreseen). This case highlights that courts use objective facts to make inferences.

Question 19

What was the requirment possibility in DE?

Answer 19

The accused does not need to foresee the result as probable, only as possible. DE differs from DI in that the Acc foresees the result not as a certainly but only a possibility.

Question 20

What are the facts in R v Horn?

Answer 20

In R v Horn, the accused had found two women stealing melons from a farm on which he was a manager at which point one of the women began to run away. When the accused called out 3 times and the woman failed to stop, he fired a shot from his pistol “to frighten her”. The evidence revealed that the Acc was very far from the woman at the time that he
shot and that he aimed away from her to the right but, nevertheless, the bullet struck and killed the deceased. The trial court convicted the Acc of murder.

Question 21

What was held in R v Horn?

Answer 21

It was held on appeal, the court set aside the finding of murder and replaced it with culpble homicide. Held that the State had failed to prove the elements of DE. According to the Court, if A had fired from a distance without specifically aiming at the deceased, intention to kill couldn’t be inferred solely because a lethal weapon was used. On the law existing at the time, A was entitled to effect a citizen’s arrest and to prevent the deceased’s escape. This is what he intended, to frighten her into stopping. Accordingly, the death of the deceased was not a probable consequence of his conduct.

Question 22

What was held in S v De Bruyn?

Answer 22

In S v De Bruyn held in the obiter that legal intention to kill would be present where there is subjective foresight of a possibility, however remote, of his unlawful conduct causing death to another. (It dosent matter if its a real or remote possiibility the accused reconciled themselves with this fact)

Question 23

What are the facts in S v Shaik?

Answer 23

In S v Shaik, a man was hit on the head with a police baton and later died from brain injuries. Three accused men had entered his flat with a number of weapons, including a knife, stick and the baton. They wore masks and had cut the telephone wires. Counsel for the accused tried to argue that the possibility of death from such an assault with a police baton was so remote that death could not have been foreseen by the accused

Question 24

What was held in S v Shaik?

Answer 24

It was held that foresight of even a remote possibility was enough. Legal intention is present if the accused foresaw the possibility, however, remote, of the act resulting in death to another. Thus, while only a slight possibility suffices, there must be a real (as opposed to a
fanciful) possibility of death. Based on the objective factors, weapons, masks, cutting of wires, speed and ferocity of the attack, the only inference that could be drawn is that a real possibility of death was foreseen. (The more practical or real the possibility the easer it is to subjectively see that he reconciled with this)

Question 25

What is the requirment of Reconsoliation?

Answer 25

In addition to subjective foresight of a real possibility, in order to prove DE, the accused must also have acted reckless as to the consequences of his conduct, the accused consents to the materialisation of the possibility or reconciles himself to it, that is, he takes it into the bargain.

Question 26

How does recklessness link to the principle of contemporaneity?

Answer 26

The issue of proceeding reckless as to a foreseen possibility of death does however link to the issue of contemporaneity – DE (all 3 elements) must exist at the same time that the accused acted. The requirement of reckless as to the possibility, simply confirms the contemporaneity (consiredned with at the time of death) rule.

Question 27

What was the obiter in S v Ngubane?

Answer 27

In S v Ngubane in Obiter, in principle, it shouldn’t matter whether the Acc foresees a faint possibility as long as he reconciles himself to the fact that it might happen. However, the extent of the possibility (small or highly probable) does have a bearing on whether the Acc reconciled himself. The implication is this: If the Acc foresaw the possibility (of death) only as slight, this implies that he did not take the possibility of the consequences into the bargain which would mean that DE is not proved for lack of the third requirement

Question 28

What are the facts in S v Beukes?

Answer 28

In S v Beukes, A, B and C set out to rob a café. B and C remained in the car while A entered the café. A had previously stated to the other two that he was taking a gun and that if anyone obstructed him, he’d shoot. A was intercepted by a policeman and a shootout ensued resulting in the death of a police officer and death of A. B and C heard shots and drove away but were later apprehended and charged with murder. Their argument was that while they foresaw the possibility that A would kill someone, they did not reconcile themselves with that possibility as evidenced by them driving away when they heard shots

Question 29

What was held in S v Beukes?

Answer 29

It was held that the court was not prepared to accept that it is possible to foresee but then not reconcile themselves (if they could not reconcile themselves with potential death then they could have not gone along with A’s plan when he indicated he might kill someone). The chances that any Acc will ever admit reconciling themselves is slim, thus, the court must use inferential reasoning (by looking at objective factors) to make inferences.

Question 30

What are the facts in In S v Van Aardt?

Answer 30

In S v Van Aardt, the appellant who was a 49 year old farmer was conivcted for 12 years imprisonment and the victim a 15 year old youth. The accused assulted the victim as he suspected him of stealing money, he struck him countless time with his hand and a stick, he further strangled the deceased by squeezing his shirt around his neck and pinned him with his knees. The accused instructed the workers to leave the victim and he slept overnight outside, he died the next morning from his injuries. The cumulative effect of the assault and the prevention of medical treatment constitutes the crime of murder. The accused pleaded not guilty to murder but guilty to assult.

Question 31

What was held in S v Van Ardt?

Answer 31

It was held in the trial court that the state failed to prove byond a resonable dounbt that the accessed had the intent to kill, however, the state had prven that the accused casued all the injuries and had deliberlty choosen not to seek medical treatment and therefore the requiste intent in the form of dolus eventualis. The SCA held that the conduct of the accused after the assult, was immensely indifeerent to the vctim plight. The victim was asulted by the accused only and therefore it is no doubt he inflicted all the wounds. It can be seen that the accused objectively foresaw the possibility of his actions causing death, this can be infered as it is the onnly reasonable inference and thereore guilty o murder with dlus eventualis as the form of intent

Question 32

What are the facts in Humphrey?

Answer 32

In Humphreys v S, the accused wa charged with ten counts of murder and four counts of attempted assault, when a minbus carrying school children he was driving was hit by train on a railway crossing. In the HC he was connected and charged for all counts and sentenced to 20 years imprisonment. He had been transporting kids and traviling the same rout for 10 years. On the day there was a queue of cars behind the railway line and the accused overtook the line of vechiles, as the booms could be avoided even when they were down, he entered the railway line despite the warning flashing lights. He held that the state failed to prove dolus or intent as if his actions were conscious and deliberate he would have realised the dangers involved, as he was a rail worker previously.

Question 33

What was held in Humphrey?

Answer 33

The SCA held that the accused was acticting voluntarily at the time of the act, as it can be infered safely that the accused knew what he was doing when he tried to perform the same exercise on the factual occasion. It is flawed reasoning that just because the accused should have forseen the outcome that he did, as this conflicts the tests of dolus and negligence. Every person would appriate the purpose of the preventative measures stooping the person from entering the railway, the foresight on the part of every right minded person that disregards these preventative measures creates the possibility that the foreseeable consequences might occur, therefore subjective foresight is established. The question of whether he reconciled himself with this forsight is, whether it can be inferred is not meet as it it is possible that he reconciled but unlikely.As if he foraw the possibility of the injuries of the passengers he forsaw the injuries to himself, he foraw the possibility but didnt believe it would happen as he had crossed at this moment on previous occasions

Question 34

What are the facts in Maarohanye?

Answer 34

In Maarohanye, the accused was drunk and high when he crashed into school children walking killing four and injuring two. The trial court found that the accused was in a euphoric state due to the drugs they took before they engaged in the race, the two vechiles collided and veered out of control and off the road ploughing into the school children. The accused was cconicted in the trial court, as they stated the accused subjectively forsaw the possibility that stiving towards his aim the unlawful act may be committed or the cause. They held that the only inference drawn was that after taking drugs and consuming alchohol they decided to race disregarding the rules of the rouad, subjectively foreseeing that they might casue harm to the pubpils that were on the road.

Question 35

What was held in Maarhonye?

Answer 35

The AD held that dolus is a subjective alue judgment reliant on infeerential reaonsing based on what the person thought and not what he should have foreseen. It is clear that subjective foresight of the possibility of death as a result of conduct, taking place was present. The accused faculties were not affected in the sense that their judgement was imparied thus inducing them to take risks and drive as they did on the day. The accusede therefore did not have the foresight of the possible consequences and couldnt reconcile themselves with this evenuality.

Question 36

What are the facts in Pistorius?

Answer 36

In Pistorius, the accused a paralygic shot and killed the victim's girlfriend in his home. The accused was found distressed with the victim after he had shot her and mortally wounded her through the bathroom door.The state tried to prove that based on their recent arguments the victim locked herself in the bathroom to escape the accused who fired fatal shots through the door killing her. The accused allegeed he woke up and noticed that certain furniture around the room had been moved, and he heard the bathroom window open so he believed there was an intruder and shot them with the gun he kept under his bed. The trial court stated he couldnt be held liable

Question 37

What are was held in Pistorius?

Answer 37

The SCA held that the accused stated that he intended to kill the person behind the door whom he thought was an intruder. The acused was aware that all shots fired into the door would inevitble strick the person behind it. The accused therefore forsee the possility of killing the person behind the door and reconcilied himself with that. Meeting the requirments of dolus eventualis

Question 38

What does the Sighwahla case highlight?

Answer 38

This case highlights subjective foresight is established by inferential reasoning, through objective factors to make inference about what is in the accused subjective mind

Question 39

What does Mini highlight?

Answer 39

This case highlights you can only make the negative inference if it is the only reasonable inference in in the circumstance

Question 40

Define subjective forsight

Answer 40

Subjective foresight looks at the subjectivity through inferential reasoning whether the accused foresaw the consequence of the act, as seen in Sigwahla

Question 41

What is inferential reasoning?

Answer 41

Inferential reasoning uses objective factors to make inferences about what was in the accused minds