Dolus eventualis: An endangered colonial species

• DOI: https://doi.org/10.47348/SALJ/v140/i2a1
• Published date: 12 May 2023
• Pages: 239-262
• Author: Mosaka, T.B.
• Date: 12 May 2023

239

VOL 140

(Par t 2)

2023

THE

SOUTH AFRICAN

L AW JO U R NA L

DOLUS EVENTUALIS:

AN ENDANGERED COLONIAL SPECIES*

TSHEPO BOGOSI MOSA KA†

Senior Lectu rer, Department of Pu blic Law, University of Cap e Town

This arti cle focuses on the fe asibility of dolus e ventualis in addres sing the problem of

intended endang erments — that is, the questio n as to how the secondary con sequences

owing from a n act of endange rment, as distin guishable from a n attack, can be said

to be ‘intended’ (dolus). Thi s problem manifests typically in th e form of the orthodox

marketplace b omb-thrower who ha s one primary aim but wh ose actions result in several

other secondar y consequences, some of which may not h ave been aimed or fore seen in

any primary s ense. After discussing why the two hi storical solutions — strict lia bility

and the versari d octrine — are no t viable answe rs to this problem, t he remainder

of the article e xamines the fea siblity of dolus event ualis as a third cont emporary

solution. This exa mination focuses on both the histor ical contradictions as well as t he

prevailing doctr inal controversies that ar e associated with dolus eventua lis. The fourth

part of the art icle reect s on ve uncontro verted problem s that curren tly beset dolus

eventualis. T he article co ncludes on a scep tical note: that dolus e ventualis may n ot

survive the ma ny diculties discussed in this a rticle, and that explor ing the expansion

of negligence or t he creation of a sepa rate and new third for m of fault may not be a

bad idea.

Dolus eventualis – decoloni sation – colonialit y – criminal l aw

* Many of the central id eas in th is paper were work shopped at the Univer sity

of Cape Town, Facult y of Law ‘Tuesday semi nar’ serie s where my dear bro thers

Leo Boonz aier, Khomots o Moshika ro, Hugh Corde r and Pierre de Vos, a nd

my esteemed si sters Nur ina Al ly, Nomfundo R amalek ana and Pa mela-Jane

Schwikk ard all gave cr itical and encou raging com ments durin g a lively discus sion.

I am sincerely g ratef ul to each of them for b eing excelle nt interlocut ors of the

highest order.

† LLB (Wit s) LLM (UCT) Ph D (Notti ngham). https://www.orcid.org/0000-

0002-6021-9958.

https://doi.org/10.47348/SALJ/v140/i2a1

(2023) 140 SALJ 239

© Juta and Company (Pty) Ltd

240 (2023) 140 THE S OUTH AFRICAN L AW JOU RNAL

https://doi.org/10.47348/SALJ/v140/i2a1

I IN TRODUC TION

The law punishe s both attacks against a person’s legally protected

interests a nd the endangerment, w ithout infr ingement, of these interests.1

Establishing intention (dolus) with respect to attacks is simplied by

the linear one -to-one (monotonic) relat ionship bet ween the attacker’s

objective and the res ult. The intentionalit y of endangerments, by cont rast,

reects a non-linear and non-monotonic one-to-m any relationship

between the att acker’s objective and several u ndesired results. The classic

problem of the marketplace bomb-th rower is an il lustrative example of

the latter i ntentional endanger ment: X aims to send a message t o a corrupt

government by detonating a bomb in a building lled w ith hundred s of

government employees, a nd some of them, who are u nknown to X, die

as a result.2 If X knew and wanted to kil l the government employees, his

intention would reect the basic linear relationship involved in all attack s.

To that extent, his act of send ing a violent message to the gover nment

would be intended in t hat same sense. However, this is not al l that

X’s actions achieve. X also endanger s the lives of unknown government

employees as a means of attain ing his primary aim . X’s intentional

endanger ment reects a one-to-many relationship because, althoug h

he has one prim ary a im — to use violence to deliver a message to the

corrupt government — his act ions achieve mult iple other consequences.

These include: damaging the government bu ilding; insti lling fear among

people in the surrounding a reas; potentially injuring several other

govern ment employees i n addition to those who died; and temporari ly

interrupting the provision of government ser vices from the aected

buildi ng (secondary consequences). The cla ssic problem of the marketplace

bomb-thrower is whether X should be held to have ‘i ntended’ (dolus) any

or all of these secondary consequences.

1 R Antony Du  ‘Crimi nali sing enda ngerme nt’ (2005) 65 Louisian a LR 941

at 9 41–2.

2 Cf S v Nel 1989 (4) SA 845 (A). See also Direc tor of Public Prosecutions, Gaut eng

v Pistorius 2 016 (2) SA 317 (SCA) p ara 31. Other exampl es include R v Jolly 19 23

AD 176 at 178 and 185 (Diedericks , Jolly, Price and about nine ot hers successful ly

ful lled a reque st made by a gr oup of strike le aders to der ail a tr ain in order t o

‘block the li ne and disorgani ze the tra c’, but without any of the 200 p assenger s

being inju red or killed); R v Kew elram 1922 AD 213 at 214 (a merchant deliberatel y

set re to hi s insured p roperty i n order to def raud his in surer, but the  re

inadvert ently spread t o the entire bu ilding, which was owne d by another per son

named Mui rhead); S v Naidoo 2003 (1) SACR 347 (SCA) paras 6–7 (the owner of

a night club det onated a teargas ca nister at a rival club w ith the aim of redi recting

its customer s to his club, but t his inad vertently r esulted i n a stampede i n which

thir teen people died). For furt her examples see Gerald D workin ‘Intention, fore -

seeabil ity and res ponsibil ity’ in Ferd inand Schoeman (ed) Responsibility, Character

and the Emotions: Ne w Essays in Moral Psycholog y (1987) 338 at 339.

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