Reformulating dolus eventualis : guidance from USA and Germany

• Date: 01 September 2020
• Author: Franaaz Khan,Kirstin Hagglund
• Pages: 1-10
• DOI: 10.17159/2413-3108/2020/v0n69a6108
• Published date: 01 September 2020

2 – 1

SA CRIME QUARTERLY NO. 69 • 2020

Reformulating

dolus eventualis

Guidance from USA

and Germany

South African

Dolus eventualis has correctly been described as an ‘enigma’. Not only has it been variously

described by the courts, but the courts have applied the two-stage test without providing an

in-depth analysis of what it means. Both dolus eventualis required for murder and conscious

negligence required for culpable homicide, contain an element of subjective foresight of the remote

possibility of death occurring. As a result, the distinction between murder and culpable homicide has

become confused over the years, and is evident in the courts vacillating between findings of murder

and culpable homicide. Considering the lack of clarity, this article examines the test for dolus

eventualis in the case of murder and determines whether it can be more clearly distinguished from

culpa, in the case of culpable homicide. German and American law and academic opinion are

consulted in order to establish how the respective countries have dealt with the conflation of murder

and negligent killings.

Introduction

MacKinnon2 correctly points out that the

meaning of murder is not self-evident, and that

‘both its definition and status relative to other

forms of homicide present serious difficulties in

criminal law theory’. Murder is defined as the

intentional unlawful killing of a person, whilst

culpable homicide is defined as the negligent

unlawful killing of a person.3 The sole difference

and distinguishing feature between these two

crimes lies in the fault element of the crime

which determines whether the unlawful conduct

was carried out intentionally or negligently.4

CR I ME QUA RT E R LY

Kirstin Hagglund and Franaaz Khan1

kirstin.hagglund@mweb.co.za

franaazk@uj.ac.za

http://dx.doi.org/10.17159/2413-3108/2020/v0n69a6108

No. 69 | 2020