Recent Case: General principles and specific offences

• Jurisdiction: South Africa
• Date: 24 May 2019
• Pages: 385-395
• Citation: (2017) 30 SACJ 385
• Published date: 24 May 2019
• Author: Shannon Hoctor

General principles and specic

offences

SHANNON HOCTOR

University of KwaZulu-Natal

1 General principles

1.1 Dolus eventualis

The notion of dolus eventualis repeatedly appears in the law report s.

This is neither surpr ising or in any way inappropriate. Dolus eventualis

is after all by far the most impor tant form of intention in practice

(MA Rabie A Bibliography of South African Criminal Law (General

Pr in cip le s) (1987) 68). Unfortunately the approach adopted by the

courts in relation to this notion rem ains somewhat inconsistent in

certain respects.

In S v Miller 2017 JDR 1773 (WCC) the court, understandably,

followed the most recent pronouncements of the Supreme Court of

Appeal in explaining the components of dolu s eventualis. Thus, the

foresight component is explicated (at para [192]) with reference to the

cases of S v Makgatho 2013 (2) SACR 13 (SCA), and (at para [193])

Sv Humphreys 2013 (2) SACR 1 (SCA) (both references are rendered

incorrectly in the judgment).

The court in Makgatho applies (at para [9]) the den ition proffered

by Snyman (whilst the court cites the 5th edition of t his work, the

same denition is set out in CR Snyman C riminal Law 6ed (2014) 178):

‘A person acts with intention, in the form of dolus eventualis, if the commission

of the unlawful act or the causing of the unlawful result is not his main aim,

but he subjectively foresees the possibility that in striving towards his main

aim, the unlawful act may be committed or the unlawful result may ensue,

and he reconciles himself to this possibility’.

This denition usef ully and correctly reect s the prevailing curre nt

approach adopted in the courts with regard to dolus e ventualis (see,

in this regard, S v Humphreys s upra). However, the court in Makgatho

then proceeds to rather muddy the denitional waters, it is subm itted,

when it states that ‘it must be shown that a real – as opposed to a

RECENT CASES

385

(2017) 30 SACJ 385

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