Comment: The volitional component of dolus eventualis

• Jurisdiction: South Africa
• Citation: (2003) 16 SACJ 207
• Author: Stephen de la Harpe
• Pages: 207-211
• Published date: 03 September 2019
• Date: 03 September 2019

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207

The volitional component

of

dolus eventualis

STEPHEN DE LA HARPE AND THARIEN VAN DER WALT

Potchefstroomse Universiteit vir Christelike Hoer Onderwys

Introduction

In the unreported judgment of

S v Dhlamini

(case no CC 27

6

/

9

9/AL)

delivered in the circuit court of the Witwatersrand Local Division, Schabort J

found four gang members who participated in an armed robbery guilty of,

inter alia, murder. The police killed one of the deceased, a gang member,

during the robbery. The remaining four gang members were found guilty of,

inter alia, the murder of their partner in crime.

Facts of the case

A gang of five men planned to rob a cash loan business in Potchefstroom. An

informant who knew about the planned robbery informed the police and the

police set a trap for the prospective robbers.

When the gang members arrived, the police confronted them and shots

were exchanged. One police member and one of the gang members were

killed. The surviving four gang members were inter alia charged on two

counts of murder: the murder of the police officer, who was presumably

killed by a gang member, one Ramngcani, and the murder of the said

Ramngcani who was killed by the police's shots.

Mens Rea

The court dealt in particular with the question of mens rea. The court decided

that it was trite law that when an offence like this one is committed by a

group of persons, they have a common intention. It does not really matter

who drives the car, who shoots or who does what in obtaining the common

goal. All the members in the group have the same culpability.

The killing of the police officer by Ramngcani was murder. The killing of

Ramngcani by the police, however, was lawful. The question was whether

the accused could be found guilty of murdering their fellow gang member

Ramngcani. In order to answer this question the issue of

mens rea

becomes

pertinent.

(2003) 16 SACJ 207

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