Comment: Distinguishing between dolus directus and dolus eventualis: Ngobeni v The State (1041/2017) ZASCA 127 (27 September 2018)

• Published date: 06 July 2021
• Citation: (2021) 34 SACJ 128
• DOI: https://doi.org/10.47348/SACJ/v34/i1a7
• Author: Tshehla, B.
• Pages: 128-136
• Date: 06 July 2021

Distinguishing between dolus

directus and dolus eventualis:

Ngobeni v The State (1041/2017)

ZASCA 127 (27 September 2018)

BOYANE TSHEHLA

University of the Witwatersrand

1 Introduction

South African law recogn ises several forms of intention in establish ing

criminal l iability in respect of cr imes for which intention is the

required form of fault. These are dolus directus; dolus indirectus; and

dolus eventualis ( J Burchell Pr inciples of Crimin al Law 5ed (2016) at

349, SV Hoctor Snym an’s Criminal La w 7ed (2020) at 160). Snyman

denes dolus directus as comprising in a person ‘directing his will

towards achieving the prohibited result or towards performi ng the

prohibited act’ (Snyman supra at 160). He denes dolus indirectus

as where ‘the prohibited act or result is not X’s goal, but he realises

that if he wants to achieve his goal, the prohibited act or result wi ll of

necessity materialise’ (ibid at 160). Burchell denes dolus eventualis

as where ‘the accused does not “mean” to bring about the unlawf ul

circumstance or to cause the un lawful consequence which follows from

his or her conduct, but foresees the possibility of the circ umstance

existing or the consequence ensuing and proceeds with his or her

conduct’ (Burchell supra at 351).

While case law and academic wr itings are awash with denitions

of these forms of intention, there is no dispute regardi ng these

denitions, except perhaps in respect of the speci c requirements

of dolus eventuali s, where there is an ongoing debate whether the

nature of the foreseen possibility should be a qua lied one or not

(see Shannon Hoctor ‘The Degree of Foresight in Dolus Eventuali s’

(2013) 2 SAC J 2 at 131–155 in this regard). Even that debate, however,

does not affect the broader acceptance of the core denition of do lus

eventualis. In respect of dolus directus and dolus indirectus, it appears

there is an unreser ved endorsement of the denitions. T he controversy

and/or uncertainty regarding intention that often plays out in trials is

usually in respect of the application of the forms of i ntention; not

their denitions. The controversy and /or uncertainty is/are especially

prevalent in respect of dolus eventu alis. All too regularly, the courts of

128

https://doi.org/10.47348/SACJ/v34/i1a7

(2021) 34 SACJ 128

© Juta and Company (Pty) Ltd