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Article by listed attorney: Fawzia Khan

Up until the time when Judge Masipa handed down her judgment in the now world famous Oscar Pistorius trial, the only people who were familiar with the Latin phrase “dolus eventualis” were law students and criminal lawyers. Now this obscure phrase is on the lips of almost everyone who has an opinion on the verdict as passed by Judge Masipa.

Murder as we all know is the unlawful and intentional killing of another human being. In law if there’s no fault, whether in criminal or civil law, there’s no liability. Fault is made up of either an intention to harm or negligence. An intention comprises of a specific state of mind, i.e. where you firmly intend to commit a crime. Negligence is regarded as that conduct which happened accidentally.  The word dolus means intent. There are 3 types of intention in law, direct intention, indirect intention and lastly legal intention.

Direct intention, called “dolus directus”, is where a perpetrator has a firm intention to commit a specific unlawful act and there follows the unlawful consequence of that act. Hence if you take a firearm, point it at a person with the intention to shoot that person”, you would be found guilty of dolus directus.

Indirect intention is referred to as “dolus indirectus”. This is where you want a specific outcome, but know that your action could also result in another outcome, but you nevertheless proceed with your unlawful conduct. Say for example a person wants to shoot a particular person in a crowded restaurant. The perpetrator would be aware that in shooting a particular person, he also runs a very real risk that other people in the restaurant are likely to be harmed, but proceeds to shoot notwithstanding. If someone else dies as a result of the shots being fired, the court will find that the perpetrator had the dolus indirectus and will convict that person for murder (i.e. even if the accused did not have the intention to kill that particular individual).

The last ‘dolus’ in a murder charge is that of dolus eventualis or legal intention. This is where an accused person can objectively foresee that his conduct is likely to cause the death of another, but proceeds to act regardless of the consequences of his conduct.

A good example of dolus eventualis could be seen in the Jub Jub trial. In that case a well known South Africa hip hop musician, and his co- accused whilst racing and under the influence of drugs, crashed their vehicles into a group of schoolboys, causing the death of two boys. Whilst it was clear that perpetrators had no intention to kill the school boys, the fact that they used drugs and then took to the wheels of a motor vehicle and race each other in the build up area, meant that they could have foreseen that their actions could result in the death of someone. Based on the court finding that they had the dolus eventualis, they were found guilty of murder and several other criminal charges. Going back to the Pistorius verdict, there are many people, including lawyers who would argue that Pistorius should have been found to have satisfied the legal requirement of having had the legal intention i.e. dolus eventualis, when he fired the shots into the toilet.

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