S v Dube

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Roelofse AJ
• Judgment Date: 03 May 2022
• Docket Number: CC03/22
• Hearing Date: 13 April 2022
• Court: Mpumalanga Division (Main Seat)
• Citation: 2022 JDR 1105 (MN)

Roelofse AJ:

[1]

A intends, decides and plans to assault B. A assaults B. B dies as a result of the assault. Did A commit premeditated murder if his plan was only to assault B but as a result of the assault, B died?

[2]

In my view, the only manner in which this question can be unravelled is to revisit the basics in respect of the crimes of assault and murder with a specific focus on intention as one of the essential elements of both crimes as well as the concept of premeditation.

Assault and murder:

[3]

Assault consists the unlawful and intentional: (a) applying force to the person of another directly or indirectly; or (b) threatening another with immediate personal violence in circumstances which lead the threatened person to believe that the other intends and has the power to carry out the threat. [1]

[4]

Murder is the unlawful and intentional causing of the death of another human being. [2]

2022 JDR 1105 p3

Roelofse AJ

Intention:

[5]

Intention is one of the elements of the crimes of assault and murder.

[6]

INNES CJ, in R. v. Jolly and Others, 1923 A.D. 176 at pages. 181, 182 concluded that intention may be inferred from the intrinsically probable consequences of an act, whatever intentions the doer may profess.

[7]

Culpability in the case of assault and murder is either dolus directus or, dolus indirectus or, dolus eventualis and dolus indeterminatus or generalis. Other descriptions of dolus eventualis are "constructive" [3] or "legal" intention and employs a technical and artificial meaning of the word "intention". [4]

[8]

In S v Pistorius 2016 (1) SACR 431 (SCA), the Supreme Court of Appeal articulated the concept of dolus eventualis in murder cases as follows at paragraph 26:

'In cases of murder, there are principally two forms of dolus which arise: dolus directus and dolus eventualis. These terms are nothing more than labels used by lawyers to connote a particular form of intention on the part of a person who commits a criminal act. In the case of murder, a person acts with dolus directus if he or she committed the offence with the object and purpose of killing the deceased. Dolus eventualis, on the other hand, although a relatively straightforward concept, is somewhat different. In contrast to dolus directus, in a case of murder where the object and purpose of the perpetrator is specifically to cause death, a person's intention in the form of dolus eventualis arises if the perpetrator foresees the risk of death occurring, but nevertheless continues to act appreciating that death might well occur, therefore

2022 JDR 1105 p4

Roelofse AJ

'gambling' as it were with the life of the person against whom the act is directed. It therefore consists of two parts: (1) foresight of the possibility of death occurring, and (2) reconciliation with that foreseen possibility. This second element has been expressed in various ways. For example, it has been said that the person must act 'reckless as to the consequences' (a phrase that has caused some confusion as some have interpreted it to mean with gross negligence) or must have been 'reconciled' with the foreseeable outcome. Terminology aside, it is necessary to stress that the wrongdoer does not have to foresee death as a probable consequence of his or her actions. It is sufficient that the possibility of death is foreseen which, coupled with a disregard of that consequence, is sufficient to constitute the necessary criminal intent.'

[9]

The Supreme Court of appeal confirmed that the foreseeability test to be applied is subjective. The Supreme Court of Appeal says in this regard as follows at paragraph 29:

'Furthermore, the finding that the accused had not subjectively foreseen that he would kill whoever was behind the door and that if he had he intended to do so he would have aimed higher than he did, conflates the test of what is required to establish dolus directus with the assessment of dolus eventualis. The issue was not whether the accused had as his direct objective the death of the person behind the door. What was required in considering the presence or otherwise of dolus eventualis was whether he had foreseen the possible death of the person behind the door and reconciled himself with that event.'

[10]

The Supreme Court of Appeal proceeded to analyse the facts of the case and found that the accused was guilty of murder, culpa being dolus eventualis.

[11]

Therefore, in our law, dolus eventualis in relation to murder is present where the accused, while subjectively foreseeing the possibility that his or her act may cause the death to another, nevertheless persists in the act while reconciling himself or herself with the outcome.

2022 JDR 1105 p5

Roelofse AJ

[12]

A premeditates to kill B by assaulting B. A follows through with the act. A assaults B. B dies as a result of the assault. A's plan and his direct intention was to kill B. A's premeditation and direct intention therefore coincide. What if A did not plan or premeditate to kill B but only to cause B bodily harm? A assaults B so severely that B dies. A knew that B may die as a result of the extent of the assault. A reconciles with that possibility. A thus committed murder where his plan was to cause B bodily harm and not to kill B. A premeditated assault but committed murder. This is where the difficulty lies. What if intention in the form of dolus eventualis is proven together with premeditation?

Premeditated Murder:

[13]

The concepts of premeditation and intention are different. Premeditation involves a thought process that contemplates a certain outcome and the means to achieve that outcome. Intention in all of its forms (dolus directus, dolus indirectus and dolus eventualis) involves the perpetrator's state of mind before and while the criminal act is being committed.

[14]

Premeditated murder is more blameworthy than a murder committed at the spur of the moment or when death results after an assault. Premeditated murder remains the crime of murder. It does not constitute a special species of...