Recent Case: General principles and specific offences

• Author: van der Linde, D.
• DOI: https://doi.org/10.47348/SACJ/v35/i1a5
• Published date: 07 July 2022
• Date: 07 July 2022
• Citation: (2022) 35 SACJ 74
• Pages: 74-84

General principles and

specic offences

DELANO VAN DER LINDE

Stellenbosch University

1 General principles

1.1 Dolus eventualis

In Condy Mawela v The State ((377/2021) [2022] ZASCA 18, (16 February

2022)), the Supreme Court of Appeal (‘SCA’) considered an appeal

against convictions and sentences imposed by the Li mpopo division

of the high court for various counts of murder, malicious injur y to

property and assault with i ntent to cause grievous bodily harm. The

incident was the result of vigilante justice meted out by a group of

about 100 people, acting in common purpose, direc ted against

a member of the community who was a suspec ted rapist (Mawela

paras [1], [4]–[6]). The alleged perpetrator, who was exculpated by DNA

evidence, committed suicide while his brot her, Kleinbooi, was killed

during the attack. Mothle JA (on behalf of a unan imous Supreme Court

of Appeal) held that ‘any semblance of justice seems to have eluded

the families’ (at paras [1]–[2]).

The SCA was confronted with t he proper application of dolus

eventualis on the facts. T he nding of the high court was th at the

death of the deceased was caused by a fatal blow to the head with

a rock. It held further that it was not necessar ily the intention of the

vigilante group to murder the deceased but merely ‘to stop him f rom

eeing’ (at para [17]). In this attempt, however, the group was ‘gambling

with his life’ in that t hey ‘should have foreseen’ that he could be killed

by a fatal blow (at para [17]. Also see Director of Public Prosecutions,

Gauteng v Pistorius (2016 (1) SACR 431 (SCA) at para [51]) where the

Supreme Court of Appeal also employed the terminology of gam bling

with someone’s life when describing dolus eventuali s).

The state was required to prove that the appellants s pecically

brought about the death of the deceased as the SCA found that t he state

had failed to prove the existence of a common purpose. Although t he

SCA only dealt with the non-ex istence of a common purpose towards

https://doi.org/10.47348/SACJ/v35/i1a5

RECENT CASES

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(2022) 35 SACJ 74

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